After putting on hold its prior recommendation back in March of this year, the United Kingdom Spoliation Advisory Panel has recommended that the Tate Gallery in London should return Beaching a Boat, Brighton by John Constable to heirs of Budapest-based (and Jewish) Baron Ferenc Hatvany. The Art Newspaper reports that the Spoliation Panel concluded that the 1946 export license at issue in the springtime uncertainty (located from the Budapest Museum of Fine Arts) was insufficient to overcome the conclusion that title to the looted painting had not passed lawfully.
(the export permit, as depicted in the September 10, 2015 decision)
This is a notable announcement, in particularly because it applies the application of doubt in favor of the claimant, not the reverse.
As reported last year by The Art Newspaper:
Hatvany had bought Beaching a Boat, Brighton at a Paris auction in 1908. In 1942, when Budapest was threatened with Allied bombing, he put many of his paintings in bank vaults for protection, although other pictures remained in his two main residences. Two years later, after the German invasion of Hungary, Hatvany went into hiding, where he remained until Soviet troops entered the country in February 1945. At that point, Red Army soldiers looted the bank vaults.
Beaching a Boat, Brighton was donated to Tate in 1986 by a Mrs P.M. Rainsford, who had acquired it in 1962. That same year, it was owned by a Mr Meyer, who sold it to the London dealer Leger, and it then went to the Broadway Art Gallery in Worcestershire, which sold it to Rainsford. All parties appear to have been acting in good faith.
The U.K., like the United States, generally will not allow a good-faith purchaser to acquire title of an object that was stolen. Hungary and other Continental countries take the opposite view, such that if there were a good faith purchase on the Continent before it got to England, the heirs might be out of luck (contrasted with if the thief had imported it into the U.K.). In its first recommendation, however, the Spoliation Panel went even further, criticizing the Tate for its provenance research.
Then, this year, the 1946 export permit from Hungary raised the possibility that there might have been an intervening good faith purchaser. If the painting were looted in 1942, then acquired and exported in good faith by a third party (particularly after the war), that transaction could, under certain circumstances, extinguish the legal title claim of Hatvany’s heirs. Good faith purchase is necessarily a fact-intensive query, and the presumption matters quite a bit. If, having been looted, one assumes that any transaction thereafter was illicit until proven otherwise, it would be difficult to interfere with the heirs’ claim absent compelling proof. If, on the other hand, one puts the heirs to the burden of proof to disprove good faith, there too it would be a hard task to meet.
The Spoliation Panel was particularly interested in the idea that there was no indication of provenance research as part of the export license procedure. Put another way, one cannot assume good faith acquisition if one cannot be sure that that purchaser at least considered the ownership history. The Spoliation Panel concluded:
On the balance of probabilities he [Hatvany] had not recovered it [the Constable] after it was looted and that the export licence was being sought by persons who were either ignorant of its pre-1944 provenance or, knowing it, were sufficiently confident that the work would not in all likelihood be identified as formerly part of the Hatvany collection.
Happiest of all, this avoids an uncomfortable collision between whether the Tate could keep the painting, and whether it should do so.
