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Credit: Camille Pissarro, Rue Saint-Honoré, dans l'après-midi. Effet de pluie (1897). Courtesy of the Museo Thyssen-Bornemisza.
Art restitution is becoming a global trend: from France’s influential 2018 Initiative to return Beninese Bronze statues to the people of the African tribe of Benin, to the emergence of museum exhibits dedicated entirely to reclaimed collections previously torn apart by Nazi rule. “One of the longest-running cases in the United States about art looted by the Nazis” centers on an Impressionist painting created 125 years ago.
The Journey of a Stolen Painting
In 1897, Impressionist Camille Pissarro painted “Rue Saint-Honoré, in the afternoon. Effect of rain.” It is an oil painting that captures the artist’s impaired vision of a rainy Parisian street from his hotel room.
Julius Cassirer, founder of a publishing company and Impressionist devotee, purchased the painting directly from Pissarro. The piece was then inherited by Fritz Cassirer and passed to his wife, Lilly, upon his death. Upon the rise of the Third Reich, Lilly, as a Jewish woman, became desperate to escape Germany with her family. In an attempt to acquire travel visas, she signed a contract to sell the painting for RM 900, roughly $215 then and $4,565 today. It passed from an official with the Reich Chamber for Visual Arts, to a department store owner, before getting seized by occupying German forces and given to the son of a German painter. The painting of Rue Saint-Honoré was then sold in Berlin at a Gestapo auction in 1943 for RM 95,000 and disappeared.
After the fall of the Third Reich, Allied forces formed a tribunal to correct unconscionable art sales much like Lilly’s story. Within this tribunal, Lilly filed a restitution claim in 1948. The tribunal found Cassirer to be the rightful owner. They were not able to find the painting to restore it to the rightful ownership of the Cassirers after searching for ten years. In lieu of the painting, she was awarded 120,000 DM ($13,000) from the German state, considered to be the fair market value at the time of the tribunal.
Unbeknownst to the tribunal or the Cassirers, the painting quietly reappeared in New York in at the Knoedler Gallery, six years before they concluded their search, when an American collector purchased the piece. From him, it was acquired for $275,000 in 1976 by Baron Hans Heinrich Thyssen-Bornemisza, a German-born aristocrat who spent most of his life in Spain. After a couple decades away from the public eye, the Museo Thyssen-Bornemisza was opened in Spain to showcase the Baron’s collection. The following year, Pissarro’s rainy Parisian street painting, as part of the collection, was purchased by the Kingdom of Spain, who claims to be the rightful owner to this day. Lilly passed away before the painting was rediscovered by her grandson at the museum in 2001. He filed a restitution suit four years later in a California district court, having no idea of the lengthy legal battle ahead.
The Case for Restitution
The ultimate question comes down to which Choice of Law rules govern. If the California court applies Spanish law, the Spanish Civil Code Article 1955 says that one who holds possessive ownership of movable property acquired in good faith for 3 years will hold good title, and one who holds moveable property for 6 years will hold good title, even if it was acquired in bad faith. Therefore, under Spanish law, the government would own the painting through adverse possession after six years even if they purchased it in bad faith, suspecting that the Baron did not have good title.
If the California court applies California law, common law governs and one cannot transfer title that they do not have. This stems back to mid-6th Century Justinian law, "No-one can transfer to another greater right than he himself has." Under California law, no possessor in the line of succession from the RM 900 sale in 1939 could claim title of the painting, including the Kingdom of Spain.
The District Court in 2015 granted summary judgment, holding that Spanish law should apply, using a federal common law rule. This ruling was then affirmed by the Court of Appeals in 2020. According to the Restatement 2nd of Conflict of Laws, the federal common law rule uses the law of the state that “has the most significant relationship to the thing and the parties.” The Supreme Court granted certiorari in 2022 and decided that the District Court should have used the forum state’s Choice of Law rules. In a case against a foreign sovereign where the claims arise under non-federal law, the Choice of Law rules should be the same as if the sovereign were a private party. Today, the case is still pending after having been remanded back to the California District Court.
Trial Exhibit #10 – The painting hanging in Lilly Cassirer’s home in Germany
Cassirer v. Thyssen-Bornemisza Collection Found., 212 L. Ed. 2d 451 (Apr. 21, 2022)
California’s Choice of Law rules apply a three-step governmental interest test: (1) are the laws different? (2) if so, is there a true conflict? (3) if so, which state will be most impaired if subordinated to the laws of the other state? Unfortunately for the Cassirers, the 2015 District Court analyzed the facts against this test in its 2015 opinion, finding for the use of Spanish law. The analysis was dicta as the court ultimately used the federal common law test, so it is possible that another judge may view the analysis differently. It will be, however, an uphill battle for Cassirer’s lawyers to convince the court differently.