Liberté! Égalité! Spoiled Property?

With many cases surrounding the restitution of looted artworks, auction houses and public museums will do anything they can to ensure that these paintings remain in their collections or that, when they sell, they can still receive a cut of the profit. This is exactly what happened in the case of The Penitent Magdalene, a work of art attributed to the Dutch Old Master Adriaen van der Werff, who was active in Rotterdam and a painter of “religious and mythological scenes and portraits” according to ArtUK. 

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The Penitent Magdalene originally belonged to Lionel Hauser, an Austrian Jewish banker and cousin of the French writer Marcel Proust, with whom he usually corresponded about the latter’s “ill-fated investments.” Hauser and his wife fled to the South of France in 1940 as his family was faced with deportation by order of the Nazis. In 1942, he learned that Nazis had stolen more than 40 artworks from his storage unit in Paris in October of that year. Three years later, after the end of the war, Hauser reported that his entire art collection, including The Penitent Magdalene, had been looted to Répertoire des biens spoliés, or RBS (The Directory of Looted Assets). The RBS, according to the Art Newspaper, is a “directory of looted goods published after the Second World War, with a detailed description and several photographs.” 

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Initially, Christie’s had auctioned the painting for $72,189 in 2005, but, at the time of the first sale, the information on the painting’s provenance was scant, with no mention of Hauser or the RBS. In 2017, a client of Christie’s, who remains anonymous, contacted the auction house to sell the painting, which was valued between $37,000–$61,000. The auction house reached out to Hauser’s grandson, Bernard Hauser, about the painting’s ‘reappearance’ in 2018 in accordance with the Washington Conference Principles on Nazi-Looted Art. In their statement to the Art Newspaper, Christie’s claimed that “its research revealed the origin of the panel” and they proposed an “amicable” meeting with the Hauser heirs. 

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The Hauser heirs’ perspective, on the other hand, reveals an entirely different story. In July 2020, the heirs “notified Christie’s of their decision to pursue a restitution claim.” After multiple meetings with the London art house, the heirs claim that “after several exchanges with representatives at Christie’s European headquarters, Christie’s ‘refused’ to return the work,”citing the UK’s statute of limitations. They also refused to “name the identity of the anonymous owner, claiming reasons related to confidentiality.” According to the heirs’ court documents, “the auction house proposed to put the work on sale and equally share the proceeds between both parties”—the heirs and the seller. The heirs argued that Christie’s citation of the UK’s statute of limitations was chicanery because “it had obviously failed to research the work’s provenance when it was auctioned in 2005.” 

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In her email to Artnet News, the heirs’ art lawyer, Charlotte Caron, expressed that “restitution has essentially a symbolic value for [the heirs], more than any economic offer. We think that voluntary auctioneers should not continue to seek to make profits on artworks with such histories.” As such, Le Parisien and Le Monde reported that the heirs refused Christie’s proposed private mediation, which resulted in a slew of legal issues. In June 2022, the Hauser heirs sued the auction house in French court. In their suit, the heirs challenged Christie’s reference to the UK’s statute of limitations “based on a 1945 ordinance that widens jurisdiction and time limits for restitution claims.” Furthermore, the heirs assert that “the current anonymous owner ‘must be considered as a bad faith possessor’ under the postwar provision” and that “Christie’s alleged refusal to reveal the owner’s identity ‘demonstrates abusive retention,’ causing ‘serious moral prejudice to the heirs of the victim of spoliation.’”

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Christie’s next move is not entirely shocking. The art house’s lawyers tried to “challenge the competence,” or jurisdiction, “of the French courts” because they believed that as Christie’s is a London-based auction house and the painting’s current owner lives in the UK, the case should be heard by the High Court in London rather than the Paris civil court. It appears that Christie’s was hoping the High Court in London would rule in their favor according to the Limitation Act 1980 (the UK’s statute of limitations), which requires that “a claim to a stolen artwork must be made within six years from the date of the first acquisition in good faith….if more than six years have passed, the claim is barred and the victim's ownership is extinguished.” 

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If the case were to be heard in Paris civil court, on the other hand, the Hauser heirs would prevail. French Civil Code on art transactions states that “an error in the attribution of an artwork can very easily void a sales contract…and intermediaries may incur liability if they provide an unqualified opinion without making the status of the opinion clear and it subsequently proves to be erroneous.” At the same time, it asserts that “the action to void a sales contract is subject to a five-year limitation period, which starts to run from the discovery of the error; it is stipulated that no action on a contract may be brought once 20 years have elapsed after the date the contract was entered into.” What about the role of art houses and their experts? Well, they both “incur joint liability,” so it’s no wonder that Christie’s was eager to take things across the Channel. 

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In a triumph for the Hauser heirs, the Paris civil court found that, as the painting was looted in Paris and that the claimants were French, the French court had jurisdiction and “French law does indeed apply.” Concerning this law, therefore, “all subsequent sales of goods looted under German occupation can be considered null and void.” According to Caron, “the case is one of the few [cases] in France where courts have used the 1945 French ordinance to order the return of a Nazi-looted artwork located abroad.” This suit, along with another restitution case wherein American art collectors were forced to restitute a looted Pissarro painting in their private collection, began to raise questions about the 1945 French ordinance, including its “power over foreign transactions.” This is reminiscent of the case of certain panels by Lucas Cranach the Elder. The Norton Simon Museum’s argument for continued ownership over the works rested on the unconstitutionality of California’s abolishment of the “statute of limitations for claims to Nazi-looted art.” They also argued that in order for the panels to be returned, the claimant’s mother should have “file[d] a claim under Dutch law in the late 40s.” 

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Should the statute of limitations be shortened? Extended? Dropped entirely? In 2021, the Polish president Andrzej Duda “signed a controversial law reducing the statute of limitations on all challenges to allegedly stolen property” because of alleged “fraud in World War II-era restitution cases.” This makes “Nazi-looted art restitutions practically impossible” in Poland. If laws like these pass all around the world simply because countries, art houses, and museums cannot bear to part with the oevres d’art they believe are truly theirs, what happens next? We can do our best to believe that museums and auction houses will follow their pledges to always act in good faith and report the true provenance of all their art works and antiquities, but as a high school English teacher once said: never trust people who use absolutes. As we’ve seen over the years, provenances can be easily forged, museums can ‘overlook’ the paintings’ whereabouts between 1939 to 1945, lawyers are usually dismissive to evidence that proves the heirs’ suits, and forum shopping (“the practice of choosing the court in which to bring an action from among those courts that could properly exercise jurisdiction based on a determination of which court is likely to provide the most favorable outcome”) is rampant in these types of cases. 

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Clearly, these issues with the statute of limitations are intertwined with the murky world of restitution claims. Not every Nazi restitution case deals with an American museum and an American claimant, a German museum and a German claimant, or a French museum and a French claimant. Rather, they may look like this one: a man who used to live in Austria was the owner of a painting that he took with him to France and it was stolen by the Nazis and taken to Germany. Now, the painting is in the hands of a London museum and the heirs of the original owner are living in South Africa. The museum alerted the heirs to the fact that the painting will be sold by an American auction house to a buyer who lives in Poland. Pretty complicated, right? 

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When the Paris civil court gave their final judgment, they ruled that Christie’s must return the painting to the Hauser heirs, with a $600 per day fine for any delays, “disclose the identity of its client and the provenance of the panel prior to 2005,” and, according to Le Figaro, pay “10,000 euros to the heirs” ($10,650). Nevertheless, following Brexit, Caron admits that, although the heirs were thrilled to have the painting returned to them, “enforcing the judgment could be a challenge now that the UK is no longer a member of the European Union.” At this time, Christie’s has two options: they could launch an appeal or save face and settle out of court. Their spokesperson revealed to Artnet News that they are “look[ing] forward to finalizing this matter with the heirs of the Hauser family,” indicating that they are more likely to attempt the second option: a settlement out of court.

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With this momentous victory for the Hauser heirs, this case opens the door to more restitutions and, hopefully, more museums being held accountable for the borderline criminal actions they take to protect their interests concerning these masterpieces. For as Montesquieu once said: “Il n'y a point de plus cruelle tyrannie que celle que l'on exerce à l'ombre des lois et avec les couleurs de la justice.” (There is no more cruel tyranny than that which is exercised in the shadow of the laws and with the colors of justice.)