Press Clipping: Art Dealer Networks in the Third Reich and in the Postwar Period

Art Dealer Networks in the Third Reich and in the Postwar Period

JonathanPetropoulos


Journal of Contemporary History

First published date: January-01-2016

Art Dealer Networks Article JCH

Die deutsche Version steht hier zum Lesen bereit / Please read the german version here

Art Dealer Networks Article JCH - German

 

 

 

Merken

1938 04 27 Jewish Property Declarations: The Law of April 26, 1938

Today is the anniversary of the April 26, 1938 decree by Goering requiring Jews to declare their property.  It is important that any student of the Holocaust read the text of the decree, reproduced in italics below.  There is very little written about this law, which was a critical turning point in the Nazis’ adoption of the Final Solution.  First robbery, then murder of the despoiled victims.

Today, the consequences of this law are still being litigated in the United States.  US museums are successfully clinging to artworks stolen pursuant to the April 26, 1938 decree and the subsequent measures.  The Jewish Property Declarations were sealed by Austria from 1945 until 1993.   Now US museums are suing Jewish descendants of Holocaust victims to “quiet title” to the artworks in their collections, in violation of international law and the United States’ commitment to return Nazi spoils  to their victims.

DOCUMENT 1406-PS
1938 REICHSGESETZBLATT, PART I, PAGE 414
~ Decree for the Reporting of Jewish Owned Property of 26 April
1938
On the basis of the Decree for the Execution of the Four Year Plan of 18 October 1936 (RGBl I, 887) the following is hereby decreed:
Article 1
1. Every Jew (Article 5 of the First Regulation under the Reich Citizenship Law of 14 November 1935 (RGBI I, 1338)) shall report and evaluate in accordance with the following instructions his entire domestic and foreign property and estate on the day when this decree goes into force. Jews of foreign citizenship shall report and evaluate only their domestic property
2. The duty to report holds likewise for the non-Jewish marital partner of a Jew.
3. Every reporting person’s property must be given separately.
Article 2
1. Property in the sense of this law includes the total property of the person required to report, irrespective of whether it is exempt from any form of taxation or not.
2. It does not include movable objects used by the individual or house furnishings as far as the latter are not luxury objects.
Article 3
1. Every part of the property shall be valued according to the usual valuation it has on the effective date of this regulation.
2. No report is necessary when the total worth of the property to be reported does not exceed 5000 marks.
Article 4
The report is to be presented on an official form by 20 June 1938, to the administrative official responsible at the place of residence of the reporting individual. When such a report is not possible by this date the responsible official can extend the period. In such case, however, an estimate is to be presented by 30 June 1938, together with a statement of the grounds of delay.
Article 5
1. The reporting individual must report, after this decree goes into force, to the responsible office, every change of said individual’s total property as far as it exceeds a proper standard of living or normal business transactions.
2. The reporting requirement applies also to those .Jews who were not required to report on the effective date of this regulation but who have acquired property exceeding 5000 Reichsmarks in value, after this date. Article 1 (1) clause 2, shall apply respectively.
Article 6
1. The administrative offices responsible under this reguhttlon are in Prussia-Highest Administrative Officer [Reierungspraesident] (in Berlin the Police President) ; Bavalria Administrative Officer [Regierungspraesident] ; Saxony—Tivoli District Head [Kreishauptmann]; Wurtemberg-The Minister of the Interior; Baden-The Minister of the Interior; ThueringenReich Governor [Reichsstatthalter]; Hessen-Reich Governor; Hamburg-Reich Governor; Mecklenburg-Ministry of the State, Interior Department; Oldenburg-Minister of Interi01•; Braunschweig- Ministry of Interior; Bremen-Senator for Administration of Interior; Anhalt-Ministry of State Interior Department; Lippe-Reich Governor (Land Government); SchaumburgLippe-Land Government; Saarland-The Reich Commissioner for the Saar.
2. Austria-The Reich Governor has jurisdiction. He may transfer his authority to another board.
Article 7
The Deputy for the Four Year Plan is empowered to take such necessary measures as may be necessary to guarantee the use of the reported property in accord with the necessities of German economy.
Article 8
1. Whoever wilfully or negligently fails to comply with this reporting requirement, either by omitting it, or making it incorrectly, or not within the time specified, or whoever acts contrary to any instruction issued pursuant to Article 7 by the Deputy of the Four Year Plan shall be punishable by imprisonment and by a fine or by both of these penalties, in particularly flagrant cases of wilful violation the offender may be condemned to hard labor up to ten years. The offender is punishable notwithstanding that the action was in a foreign country.
2. Any attempt to commit such actions is punishable.
3. In addition to the imposition of the penalties under (1), the property may be confiscated, insofar as it was involved in the criminal action. In addition to hard labor confiscation may be made. Where no specific individual can be prosecuted or convicted, confiscation may be decreed independently, where the prerequisites for confiscation warrant it.
Berlin, 26 April 1938
The Deputy for the Four Year Plan
Goering
General Field Marshal
The Reich Minister of the Interior
Frick

Adolph Eichmann set up the Zentralstelle in Vienna in August 1938.  He described it as a “conveyor belt”.  You put a Jew and his property on one end and the Jew emerged with a passport and no property on the other end.  Eichmann is considered the “father” of spoliation for profit and the creation of the “Vienna model” of despoiling Jews before exporting them or murdering them.   The problem arose that no country wanted to accept Jews that had been completely spoliated.  Murder thus became the next logical step.

Nazi Era Laws – Nazi Conspiracy and Aggression – Translated

More information on Bakalar v Vavra, a recent Second Circuit case interpreting the April 26, 1938 Jewish Property declaration decree here.

More on Austria’s violations of the Austrian State Treaty here.

A report on how the Museum of Modern Art in New York is the largest repository in the nation of Nazi looted art coming in through Switzerland here.

Crossposted, see copyrightlitigation.blogspot.com

2010 09 07 New York Law Journal: 2nd Circuit Sends Art Ownership Dispute Back to the Drawing Board

Finden Sie die deutsche Übersetzung hier


Austria / Czech Republic / United States

Who really owns a drawing by the Austrian expressionist Egon Schiele?

Daniel Wise

New York Law Journal

September 07, 2010

Egon Schiele, Self Portrait 1914

The heirs of an art collector who perished in a Nazi concentration camp have been given another chance to establish their claim that a drawing by the Austrian expressionist Egon Schiele was stolen from their family.

The 2nd U.S. Circuit Court of Appeals last week ruled in Bakalar v. Vavra, 08-5119-cv, that Southern District Judge William H. Pauley erred in applying Swiss law as opposed to New York law in determining ownership of the work.

The panel’s ruling vacates Pauley’s finding that David Bakalar, an American art collector, became the rightful owner of “Woman Seated with Bent Left Leg (Torso)” when he bought the drawing from a New York gallery in 1963 for $4,300.

The New York gallery had acquired the black crayon and water-based paint drawing four months earlier from a Swiss gallery. In 2004, Bakalar sold the drawing at an auction conducted by Sotheby’s in London for $675,000.

Sotheby’s put the sale on hold after the heirs to Austrian art collector and cabaret performer Franz Friedrich “Fritz” Grunbaum stepped forward to claim ownership of the piece. Grunbaum was arrested by the Nazis as he fled Vienna in 1938 and died at Dachau in 1941.

The two heirs, Czech citizen Milos Vavra and New York resident Leon Fischer, traded lawsuits with Bakalar in 2005, with both sides seeking to be declared the rightful owner.

In declaring Bakalar to be the owner, Judge Pauley applied Swiss law, under which Bakalar, as a good-faith buyer, would acquire title to the work after five years without a claim being asserted, even if the drawing had been stolen.

New York law on the issue is very different: under no circumstances can a thief pass good title and a person from whom property was stolen has a claim superior to a good faith purchaser.

Writing for the circuit, Judge Edward R. Korman, sitting by designation from the Eastern District of New York, concluded that Pauley had relied on the wrong test in choosing to apply Swiss law. The panel remanded the case to Pauley for further proceedings, and, “if necessary, a new trial.”

Korman also wrote a concurring opinion, questioning Pauley’s finding that the Grunbaum heirs failed to produce “any concrete evidence that the Nazis looted the drawing.”

Korman wrote that his reading of the record suggests to the contrary that Grunbaum was “divested of possession and title [of the drawing] against his will.”

Judges Jose A. Cabranes and Debra Ann Livingston joined in Judge Korman’s main ruling.

Provenance in Dispute

The question of whether the Schiele drawing was stolen by the Nazis is sharply disputed.

Bakalar contends Grunbaum’s sister-in-law sold the drawing along with 45 other Schiele works in 1956 to a Swiss art gallery, Galerie Gutekunst. That claim is backed up by documents in files maintained by the Swiss gallery, which show “beyond rational dispute” that the sister-in-law, Mathilde Lukacs, was the seller, said Bakalar’s lawyer, James A. Janowitz, of Pryor Cashman.

The lawyer for the heirs, Raymond Dowd of Dunnington, Barthlow & Miller, called Bakalar’s claims “a complete fabrication based upon forged documents.”

About four months after the Galerie Gutekunst acquired the drawing, it sold it to the Galerie St. Etienne in New York, which seven years later sold it to Mr. Bakalar.

Korman said Pauley should have considered which jurisdiction had the greatest interest in the case.

New York has a “compelling interest” preserving the integrity of its art market as its state Court of Appeals has stated on several occasions, Korman wrote. For instance, in Guggenheim Foundation v. Lubell, 77 N.Y.2d 311 (1991), former Chief Judge Sol Wachtler wrote for a unanimous Court, “New York enjoys a worldwide reputation as a preeminent cultural center. To place the burden of locating stolen artwork on the true owner…would, we believe, encourage illicit trafficking in stolen art.”

By comparison, Korman described the Swiss interest as being “tenuous.” Application of New York law might cause New Yorkers to take a closer look at the work’s provenance, and that in turn, he reasoned, “might adversely affect the extra-territorial sales of artwork by Swiss galleries.”

For choice of law purposes, that Swiss interest, he concluded, must give way to New York’s “significantly greater interest” in preventing the state “from becoming a marketplace for stolen goods.”

On the question of Bakalar’s ownership, Korman noted that the record indicated that Grunbaum was forced to execute a power of attorney giving his wife control of his artwork four months after he was arrested by the Nazis and imprisoned at Dachau.

Under Uniform Commercial Code §2-403(1), which has been adopted in New York, status as a good faith buyer only attaches if a transfer of property is “voluntary,” he wrote.

In Grunbaum’s case, the circumstances “strongly suggest he executed the power of attorney with a gun to his head,” Korman said. If that was so, he wrote, under New York law “any subsequent transfer was void.”

“[Mr.] Bakalar’s suggestion that the power of attorney constituted a voluntary entrustment to property to [Mr. Grunbaum’s] wife is a proposition that remains for him to prove.”

“Unless he does so,” Korman added, even if Grunbaum’s wife, Elizabeth, transferred ownership to her sister to prevent the work from falling into the hands of the Nazis “she could not convey valid title to the artwork.”

2010 09 02 Second Circuit Rules Drawing Case involving Fritz Grünbaum

The Second Circuit Court of Appeals ruled today in a case involving the Estate of Fritz Grunbaum.

Zweitinstanzliche Entscheidung Bakalar vs. Vavra (deutsch)

The Second Circuit concluded:

Grunbaum was arrested while attempting to flee from the Nazis. After his arrest, he never again had physical possession of any of his artwork, including the Drawing. The power of attorney, which he was forced to execute while in the Dachau concentration camp, divested him of his legal control over the Drawing. Such an involuntary divestiture of possession and legal control rendered any subsequent transfer void.

Fritz Grunbaum’s art collection made headlines when D.A. Robert Morgenthau seized Egon Schiele’s Dead City from the MoMA in New York City.   At the same time, Morgenthau seized Egon Schiele’s Portrait of Wally, which was also stolen.   Portrait of Wally was returned by Austria this summer.

The Grunbaum heirs are waiting on Austria to make a decision on whether or not to return Dead City and the other artworks stolen from Fritz Grunbaum that are now in the Albertina and Leopold Museums.   Austria has promised to issue a report soon, and then The Austrian Commission for Provenance Research is expected to rule.

Watch the lecture by Raymond Dowd at Boston College Law School! Nazi Art Looting – Stolen Art in US Museums and How It Got There

Girl With Black Hair –  Stolen From Fritz Grunbaum, Now At Oberlin College

Here is a link to a lecture at the Boston College School of Law on April 22, 2010.  The URL is http://echo360.bc.edu:8080/ess/echo/presentation/20714145-29f6-4eb8-b72e-aadd6e794ad1.

Assoc. Dean Filippa Anzalone and her terrific Art Law students gave Raymond Dowd  a great welcome and asked lots of tough questions.  Dean Anzalone wrotea lovely letter and kindly gave permission to reprint:

Dear Ray:

Thank you again for your wonderful presentation for the Art Law Seminar on April 22nd. The students and other attendees were literally on the edge of their seats as they listened to your lawyerly and thorough discussion. Your excellent lecture, coupled with your slides made the presentation on Bakalar v. Vavra and Egon Schiele’s Dead City: Stolen art from Europe (1933-1945) in American museums and how it got there one of the most memorable classes of the semester. In fact, we discussed your presentation at the following week’s class and it was difficult to turn the discussion back to the topic scheduled for that week!

The thoroughness with which you presented the diabolically methodical process that the Third Reich used to despoil Jews of their property kept the class riveted during your lecture. The horror of the Nazi art looting came to life for the audience as you presented the evidentiary issues and the legal problems associated with restitution litigation for holocaust victims and families.

Since your presentation, many of the attendees have contacted me and commented on how astonished they were after your lecture. It is chilling to realize how methodical and relentless the Third Reich was in their pillaging operations. The cold, non-violent theft of Jewish property, including land, art and household objects, and even life insurance policies , by the Nazis is harrowing to say the least. Many of the attendees have told me that they appreciated understanding the issues of the Nazi thefts from your very carefully articulated legal perspective.

Your program was a real success; superseded only by your generosity of time and energy. We thank you for the printed copies of your slides, and your great kindness in talking with students and answering questions. We want you to know how very much your work was appreciated by me, my class, and the Boston College Law community. Thank you so much, Ray. May your good work continue and prosper.

Peace,

Filippa Marullo Anzalone
Professor of Law
Associate Dean for Library & Technology Services

Traffickers in Stolen Schieles: U.S. Museum Directors Warned Not To Act As Receivers of Stolen Goods

Egon Schiele Self-Portrait – Stolen from Fritz Grunbaum when he was deported to Dachau, now at the Morgan Library (Bequest of Fred Ebb)

The Morgan Library claims that the Berne gallery Gutekunst & Klipstein purchased this artwork directly from the estate of Egon Schiele.  Source: From Berlin to Broadway:  The Ebb Bequest of Modern German and Austrian Drawings (2007).

Gutekunst & Klipstein (now owned by Eberhard Kornfeld) claims that the work belonged to Fritz Grunbaum and that it bought the work in 1956 through Grunbaum’s sister in law.

Why would the Morgan Library tell a different story?

The late Francis Henry Taylor, former Director of the Metropolitan Museum of Art, warned U.S. museums not to act as receivers of stolen goods in 1943…

We know that the Nazis have carried off virtually all of the movable works of art in private possession.

***
The methods by which these properties are acquired have an ingenious quality of wickedness bordering on the naïve. The Nazis resort to the strictest legal fictions to justify their operations. …The laws regarding ownership of property by Jews have been invoked at every turn…. They were easy victims.

***

… their personal possessions — particularly works of art — were sold at public auction where German officials directly, or indirectly through local Quislings, bought in the objects with the worthless paper currency … . Then in turn the money realized by the original owner was taxed 100 percent and passed directly to the Nazi treasury.

***
Not since the time of Napoleon Bonaparte has there been the wholesale looting and destruction of art property that is going on today in the occupied countries. The Nazis have either confiscated or acquired by fictitious purchase the most important masterpieces of both public and private collections.

***

…after a fugitive existence [the artworks] will inevitably find their way to the free markets of neutral countries. In Buenos Aires and Madrid, in Stockholm, Berne and Lisbon, in Istanbul and Cairo we will see come out of hiding in the years immediately following the war objects of great intrinsic worth, held for the most part under fictitious names, and representing the real assets of the Nazi officials who are lucky enough to escape. These works will be offered primarily in the Western Hemisphere. How can we prevent this from happening and becoming ourselves party to the looting of Europe?

***

Private individuals might continue to operate in a “black market” of antiquities in which no questions would be asked, but public institutions disposing of trust funds could not very well connive in the liquidation of the artistic patrimony of Europe and act as public receivers of stolen goods.

Taylor, Francis Henry, Europe’s Looted Art: Can It Be Recovered? New York Times, September 19, 1943

Why is it that only today’s American museum directors seem to believe that Jews voluntarily sold artworks under the Nazi reign of terror?   And that they have a fiduciary duty to conceal stolen property?

Francis Henry Taylor knew that people in Berne would be selling artworks using fake names and he warned the art market.  In 1943.

Crossposted, see copyrightlitigation.blogspot.com

Austria and Fritz Grunbaum’s Stolen Schieles at the Albertina Museum

In 1955, Austria signed a treaty with the United States promising to give back all of the property it stole from Jews during the period of Nazi “occupation” of Austria.   Ever since, Austria has treated this obligation largely as a joke, thumbing its nose at Jews who attempted to get their property back.  Only in the 1990’s through a combination of class action lawsuits and the actions of the Clinton Administration spearheaded by Amb. Stuart Eizenstat, did Austria instead agree to pay pittances to Jewish persecutees in lieu of giving them their property back.   The sad tale is well told in Eizenstat’s book Imperfect Justice.

But the class action settlements did not cover stolen artworks in Austria.  In 1998, in reaction to D.A. Morgenthau’s seizure of Egon Schiele’s Portrait of Wally and Dead City (Dead City belonged to Fritz Grunbaum), Austria passed an Art Restitution Law that permitted claims to be made against artworks in Austria’s federal museum collections.  On April 13, 1999, the heirs of Fritz Grunbaum made claims to the following works by Egon Schiele that were stolen from Grunbaum while he was in the Dachau Concentration Camp:

Egon Schiele, Female Nude Seated on Red Drape, Back View
Sitzender weiblicher Rückenakt mit rotem Rock

Jane Kallir: Egon Schiele, The Complete Works 1998, New York №:1504
Gouache, watercolor, and pencil. Signed and dated, lower right. (48.2 x 31.8 cm).
Gutekunst & Klipstein, Nov. 24, 1955, lot 107 1

Exhibitions: London, 1964, no. 67, ill.; Hamburg, 1981, no. 214, ill.
Inventorylist Albertina: 39.931

Jane Kallier: Egon Schiele, The Complete Works 1998, New York №:1797: Heinrich Rieger; Gutekunst & Klipstein, Bern; Galerie St. Etienne, New York; Rudolf Leopold;

Provenance as per Catalog: “Egon Schiele” Würthle Gallery, Vienna 1925:
“Mutter und Kind”, sign Egon Schiele 1915 Sammlung Fritz Grünbaum
Austria never responded to the claims of Fritz Grunbaum’s heirs.  From 2000 through 2009, Austria claimed that it was “investigating” the status of the works.  In 2006, Mag. Eva Blimlinger was called in to oversee the investigation together with Mag. Annaliese Schallmeiner.

Blimlinger is a respected Austrian historian and oversaw the Austrian Historian Commission’s report found at http://www.provenienzforschung.gv.at/ The Blimlinger and Schallmeiner Report, which was supposed to have issued in the fall of 2009, never has seen the light of day, apparently the victim of the Austrian Federal Ministry for Education, Arts and Culture.   Why was that report killed and what did it say?

In the summer of 2009, at the Prague Conference on Holocaust Era Assets, Minister Claudia Schmid promised Congressman Wexler that she would investigate the status of the Grunbaum works at the Albertina.  I spoke to Dr. Christophe Bazil and Dr. Thomas Baier, who reassured me that they would investigate the issue and be in contact.   I wrote to them and never got any response.

In February, a client alerted me to a forum to take place in New York on Austrian Restitution.  The program is here.    I was rather shocked that the very Austrian officials who had promised to look into the Grunbaum affair and who did not have the time to answer my communications were to be speaking in New York City.

By failing to return property belonging to Jews, Austria has breached its obligations under the Austrian State Treaty of 1955.  This treaty was a condition of Austria’s existence, like our Constitution.  The Allies – Russians, French, British and Americans – pulled out of Austria on the promise that all property would be returned to Jews.   Instead, Austrians continue to live in homes stolen from Jews, operate businesses stolen from Jews, and to buy, sell and enjoy art stolen from Jews.

Since the Allies left Austria, Austria has enacted successively a system of inadequate and insulting postwar laws that failed to restore property to Jews.   To understand Austria’s obligations clearly (the treaty is written in plain English), we look to the actual writing. Article 26 of the 1955 Austrian State Treaty states as follows:

PROPERTY, RIGHTS AND INTERESTS OF MINORITY GROUPS IN AUSTRIA

1. In so far as such action has not already been taken, Austria undertakes that, in all cases where property, legal rights or interests in Austria have since 13th March, 1938, been subject of forced transfer or measures of sequestration, confiscation or control on account of the racial origin or religion of the owner, the said property shall be returned and the said legal rights and interests shall be restored together with their accessories. Where return or restoration is impossible, compensation shall be granted for losses incurred by reason of such measures to the same extent as is, or may be, given to Austrian nationals generally in respect of war damage.

The full text of the Austria is found here, courtesy Wikipedia.  You will see that there are no “if’s” ands or “buts” in the Treaty.  Its language is unconditional and does not depend on enabling legislation.  Indeed, any enabling legislation that fell short of the absolute terms of the Treaty would be unconstitutional in Austria.

It is to be hoped that the U.S. State Department will assist the heirs of Fritz Grunbaum in obtaining a copy of the Blimlinger/Schallmeiner Report and in facilitating conversations through the U.S. Embassy in Vienna, consistent with the Washington Principles on Holocaust-Era Assets.   It is to be hoped that President Obama’s Ambassador to Austria, Amb. William Eacho will take a personal interest in the plight of Jews dispossessed in the Holocaust.

Crossposted, see copyrightlitigation.blogspot.com