Art Law Report

First Painting Restituted from Gurlitt Trove to be Sold; Appellate Court in Munich Breathes New Life Into Will Contest

Posted by Nicholas O'Donnell on May 25, 2015 at 2:40 AM

After the restitution of the first two works of Nazi-looted art from the trove of works found in the apartment of Cornelius Gurlitt, David Toren has announced his intention to auction his work, Two Riders on the Beach by Max Liebermann. Toren, now more than 90 years old, remembers the theft of the painting from his uncle David Friedmann in Breslau (now Wrocław). Toren is the only claimant to date to have filed litigation over the Gurlitt case. Sotheby’s will auction the work on June 24. Toren explained his motivation for the sale as follows:

I am 90 years old and blind, so while the return of the painting after so many years is of huge personal significance, I can no longer appreciate the painting as I did all those years ago in my great uncle’s home… I am one of a number of heirs and we have decided to sell.

This is an important point. I was recently discussing this very issue, that is, that restitution returns property to its rightful owner, and that criticism of what that owner does with it thereafter is really not for public criticism. The Holocaust Art Restitution Project put it eloquently over the weekend:

The point of restitution--the physical act of returning a stolen object to its rightful owner--is to mend the broken chain of ownership, a chain that was ruptured and torn asunder by anti-Jewish policies promulgated and enforced by the National Socialist government of Adolf Hitler between 1933 and 1945. . . .

Once the claimant recovers the restituted item, it is none of our business what he or she does with it. It has become a private matter. We have no say in other people’s private lives, an assertion contradicted by the ever present intrusion of smartphones, social media, recording and eavesdropping devices, search engines, and what nots of the digital, electronic age which permeate our daily lives and give us the wrong idea that we are entitled to pry into other people's lives and to judge what a claimant should do with his/her recovered assets. Once more, it’s none of our business what Mr. Toren does with his painting.

Amen to that. Meanwhile, after the court of first instance dismissed the will contest by Uta Werner over the will than named the Kunstmuseum Bern heir to the remaining works, the story is not quite over yet. The Berner Zeitung reported this weekend (my translation) reports that the high court (Oberlandesgericht) wants more information about Gurlitt's ability to make the will in the last days of his life:

The worst-case scenario, however, now seems more realistic than before. After Gurlitt's cousin was rebuffed by the Munich District Court, the case is now in the Court of Appeal. The high court announced to the parties that it "expected an expert opinion on the question of testamentary capacity of the testator," which deputy spokesperson Petra Willner confirmed. The message has been received joyfully in the camp of Gurlitt's cousin.

This is notable for two reasons. First, of course, it puts back in question the bequest in the first instance. If the will fails (which I’ve always considered a reasonable possibility given the circumstances), then the whole situation goes back to square one, last year’s staged triumph notwithstanding. Second, the lede of the article (and others) actually concerns the financial burden that the case has put on the museum. The Kunstmuseum has apparently spent more than 830,000 CHF (roughly $880,000) in legal and investigative fees, and in the preparations for its intended expansion to house the collection. If the bequest does come, that is certainly a capital investment, even if it has put the museum in the red by more than half a million so far. But if it doesn’t?

Lastly, the Green Party is making noise in Bavaria about the pace of the Task Force’s work. Verena Osgyan was quoted in the Mittelbayerische Zeitung as saying (again my translation):

There is anger over the task force launched by the state government that is looking at the collection Nazi-looted art heir Cornelius Gurlitt, who died in 2014. This is due to the slow pace of research. “We are extremely dissatisfied with the work of the Task Force,” said Green deputy Osgyan. Two works of art have been returned to their rightful heirs. “There are more than 500 works of art remain unclarified.”

Given that the story is approaching its second anniversay, and the seizure from Gurlitt has passed its third, this remains negligible progress.

Topics: Petra Willner, Cornelius Gurlitt, Breslau, Wrocław, Zwei Reiter am Strand, Uta Werner, Max Liebermann, Gurlitt Collection, Two Riders on the Beach, Verena Osgyan, Oberlandesgericht, Gurlitt, Restitution, David Toren, World War II, Mittelbayerische Zeitung, Kunstmuseum Bern, Museums, Berner Zeitung, David Friedmann

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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