The increasing role of the market in settling restitution claims

Shakeouts of Nazi-looted occurring increasingly in the marketplace


In 1998, the question of art stolen by Nazis hit the US art world in a dramatic way: the New York district attorney, and the government sought to seize an allegedly Nazi-looted painting by Egon Schiele (Portrait of Wally, 1912), which was on loan from an Austrian museum to New York, where the heirs of a Jewish family claimed it.

Ten years later, the Schiele battle is still in court, while the case prompted worldwide calls for changes in dealing with Nazi-looted art. Attention bore down first on museums, accompanied by demands for Nazi-era provenance research of collections, a centralised provenance database and return of stolen art.

Rather than fizzling out, claims still keep coming, and now not only against museums. Instead, it appears that the shakeout of Nazi-looted art may increasingly occur in the market-place, as new works come up for sale. And rather than through litigation, a number of resolutions are quietly being facilitated by Sotheby’s, Christie’s, the Art Loss Register (ALR) and others.


In response to the Schiele uproar, in 1998 and 1999 US museum groups called for Nazi-era provenance research for all acquisitions and loans, and encouraged the resolution of claims without court action. New guidelines from the American Association of Museums (AAM) allowed museums to return Nazi-looted art without raising every technical legal defence to keep it, such as invoking a statute of limitations to bar a claim. Many museums spent significant resources on provenance research. But after enormous expense, not much Nazi-stolen art has turned up at US museums. About 32 claims have been made, with most items being returned.

Some museums have stepped forward after research, as in the case of the Virginia Museum of Fine Arts, which gave back Portrait of a Courtier (date unknown) by Jan Mostaert (around 1475-1555) to the descendants of the Polish Czartoryski family, in 2005. New museum websites showing provenance information have sparked some returns: the heirs of Jewish art dealer Max Stern regained a Nazi-confiscated work by Frans Snyders, Still-life with Fruit and Game, around 1615-20, from the National Gallery of Art in Washington, DC, after seeing it on its website. Museums elsewhere have also returned Nazi-stolen art, or paid compensation, including in the UK, Netherlands, Israel, Austria and Germany.

But US museums have not balked at invoking the statute of limitations when they cite reasons to fight a claim. Recently, some museums have sued to quash claims which they say ride on the “coat-tails” of the cases of direct Nazi theft: in these cases, plaintiffs claim that because of overall Nazi persecution, Jews faced economic conditions so strained that their sales of art to dealers amounted to a Nazi taking. No US court has yet accepted this view. The Norton Simon Museum in Pasadena, California, successfully used the “too late” argument to defeat a claim which it disputed on the theory that the Dutch government had already restituted the art to a different claimant (the decision is now on appeal). In 2006, the Conference of Jewish Material Claims against Germany charged that US museums had not adequately researched or published their collections. But museum representatives said at Congressional hearings that museums had allocated significant resources to the problem, and would do so until the job was done.


Some have expressed concern that, with art prices high and more historical information available, financial backers are said to be putting up funds for research and legal fees, in exchange for a stake in sales proceeds. Others have criticised successful claimants for selling, saying that recovered art, or maybe at least one painting, should be given to a museum. But it is not clear why a person recovering stolen art should have less control over it than someone whose art was never stolen at all.

Where governments have been recalcitrant in giving up their art, lawyers have succeeded, in the US and elsewhere. In 2005, the US government agreed to an apology and a $25.5m settlement in a lawsuit over the notorious US Army plundering of a train carrying valuables stolen by Nazis from Hungarian Jews. In 2006, Austria was forced to give back five Nazi-looted paintings by Gustav Klimt to the heirs of the Viennese Jewish collector Ferdinand Bloch-Bauer. The Dutch government, also in 2006, returned 202 Nazi-stolen paintings to the heir of the Jewish dealer Jacques Goudstikker.

In a ghostly reminder that much is not resolved, some governments have now posted websites seeking heirs in the Netherlands, Austria, Germany and the Czech Republic to Nazi art loot in their possession.

The trade

Before 1998, Nazi era provenance research was not on the radar screen of most dealers. The Art Dealers Association of America issued guidelines that year on the duties of dealers to conduct provenance research. “Dealers are much more careful and alert to this than they were ten or 12 years ago,” Gilbert Edelson, administrative vice-president of the Art Dealers Association of America, told The Art Newspaper. “A careful dealer will not now buy or sell a work without being certain there is no problem involving the Holocaust.”

At its February 2008 impressionist sale in London, Sotheby’s included three stolen works whose resolution it had facilitated, two of them Nazi-loot claims: Degas’s Dancer Adjusting Her Slipper, 1873, and Juan Gris’s The Bunch of Grapes, 1924. Increasingly this is the case, Sotheby’s and Christie’s told The Art Newspaper. Each auction house said that it had facilitated scores of resolutions.

Both houses conduct their own provenance research and also use the ALR; if a Nazi-era problem is found, they alert the consignor. Sellers today tend to want to solve the problem, and may wish the auction house to start talking to heirs. “You’re facilitating a discussion between two innocent parties,” said Monica Dugot, Christie’s director of restitution. Settlement terms vary, and have included sales with a division of the proceeds, or sellers returning art to heirs for some compensation.

Meanwhile, the ALR is the largest database that registers stolen art, including Nazi loot, and often facilitates resolutions. The ALR now vets most sales items for the major auction houses, 18 art fairs including Tefaf Maastricht and Aifaf Palm Beach, dealers and collectors, and museums which lack resources to check their entire collections.

The next generation

For Holocaust survivors, anguish may sap the strength to bring a claim, or sufficient facts may not be known. Many have let the question ride, possibly for a grandchild to pursue. Such claimants are now coming forward, at a time when more historical information is available.

Facts are irretrievably lost, in many cases. But perhaps not in all. And maybe art holders will come forward if private resolutions can now more easily be achieved without publicity. Many also wonder if Nazi-looted art is stashed in private collections owned by elderly war veterans or post-war buyers, whether in South America, Russia or Manhattan.

If so, collections will be passed on, and heirs may want to sell. The market may have a chance to do its work, so long as the vigilant keep watching.

o See pages 30 and 31 for comment by curator Norman Rosenthal and art adviser Daniella Luxembourg.

Originally appeared in The Art Newspaper as ‘The increasing role of the market in settling claims'