This article is taken from Paul Howcroft’s blog Art Law London.
The amazing discovery of over 1,400 pieces of Nazi era looted or forced-sale art, worth perhaps €1bn, in the flat of Cornelius Gurlitt in Munich, will probably be the art story of the year, and perhaps the decade. Interest has naturally focused on the pieces themselves, although the German authorities seem slow and reluctant to release full details.
Also of interest is the potential for a bumper crop of restitution claims from the descendants of the original owners. Usually, restitution claims present a difficult moral question as to whether the art should be returned to the original family, who suffered at the hands of the Nazis, or to the current owner who innocently and in good faith bought the art from an intermediate owner, who was probably also innocent. US law is generally more ‘pro-original owner’, whereas in Europe we tend to be more ‘pro-current innocent purchaser’, which is why so many claims are brought in New York, where the courts take a rather liberal view of their jurisdiction.
However, it seems unlikely that claims to the Gurlitt art will be resisted by anyone claiming to be the current owner. The most likely disputes will be between competing claimants. For example, in 1930s Germany, a Jewish owner, needing to raise money in a hurry before fleeing, could have sold a piece, on what might arguably have been a ‘forced-sale’ basis, to a Jewish dealer or friend, who in turn lost the art in a forced sale or through confiscation. Also, the passing of time leads to patchy evidence, which can cause all sorts of provenance disputes.
Here in London, there has recently been an issue about the Portrait of Amalie Zuckerkandl by Klimt, which is on loan from the Austrian Government to the National Gallery for its Facing the Modern exhibition. That work was also subject to competing family claims. Although neither succeeded in an Austrian arbitration, there are still demands for the painting to be seized. In this regard, my Boston art-lawyer friend Nicholas O’Donnell has just written a very interesting and informative article about the claims to the painting. It is on his blog Art Law Report which I highly recommend.
Paul Howcroft, Partner, Fladgate LLP (firstname.lastname@example.org)