Limbach Commission Rules Against Claimants to Restitution of “Three Graces” by Lovis Corinth in Unpersuasive Opinion

Art Law Report 28 August 2014
By Nicholas O'Donnell

The German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (Beratende Kommissionhas issued its latest decision concerning allegedly Nazi-looted art in German museums.  For the second case in a row after the widely (and wisely) derided opinion not to restitute the Welfenschatz or Guelph Treasure at the Stiftung Preussischer Kulturbesitz in Berlin, the commission (known for its presiding member, former German Supreme Constitutional Court judge Jutta Limbach) has recommended against restitution, this time over the claim by heirs of Clara Levy to TheThree Graces (Drei Grazien) by Lovis Corinth (1902/1904).  The decision (available only in German) is riddled with poor logic and basic historical errors.   In short, while it may be that the painting was indeed delivered to Clara Levy’s daughter in the United States at Clark’s express instruction, that is far less clear than the commission states, and its decision further makes a number of assumptions about the circumstances of Jews in occupied or about-to-be occupied territories that undermine its credibility considerably. 

Clara Levy was a textile manufacturer who was persecuted by the Nazis.  The painting was in the collection of Ludwig Levy, Clara’s husband, who bequeathed it to her on his death in 1921.  Clara lived in Berlin, and emigrated to Schleifmühle, Luxembourg in 1939, where her son Fritz managed a factory.  The Corinth painting went with her.  Clara died there in 1940. 

According to a declaration given by Paula Levy (Fritz’s former girlfriend and later wife and heir), a part of Clara’s household effects were shipped to New York.  It is on the circumstances of this shipment that the case turns.  A bill of lading produced by Paula supposedly states: “Lovis Corinth, The Three Graces.”  The bill of lading is also stamped “New York, Dec. 5/41 19..the property entered by this Bill of Lading manifested on Steamer San Francisco arrived at New York June 3/40 Compagnie Generale Transatlantique Hol Lesquette.”  The remainder of Clara’s effects remained in Luxembourg until the invasion of German troops in May of 1940, and thereafter seized by the German Reich.  

Between sometime between 1940 and 1941, the Corinth painting was located in the Buchholz Gallery operated by Curt Valentin.  If that name sounds familiar to readers, it is because Valentin and Kurt Buchholz were a primary destination for much of the “degenerate art” seized by the Nazis and sold for hard currency abroad.  Art dealer Sigfried Rosengart in Lucerne later wrote in a 1951 letter that he had heard reports from New York that Valentin “had acquired [the painting] about ten years ago at a Public Auction Sale.”  Rosengart sold the painting in 1949 on commission for the Buchholz Gallery to Prof. Dr. Max Huggler, director of the Kunstmuseum Bern (the same museum currently pondering its appointment as Cornelius Gurlitt’s heir) and brought it to Bern.  The Bavarian State Painting Collections (Bayerische Staatsgemäldesammlungen) acquired the painting from Huggler in 1950.

In 1959 Paula Levy, represented by attorney Henry Zacharias, brought a restitution claim for money damages against the Federal Republic of Germany as Fritz Levy’s widow and heir.  The claim listed the belongings allegedly seized by the German authorities, including seventeen unspecified pictures:eight out of the “office,” and nine out of the “hall.”  The commission found that the Corinth could not have been among the eight in the office because it was not shown in the factory, and it could not have been in the hall because Rita Hubbard, one of Clara’s granddaughters, later recalled that it had hung in the dining room.  The 1959 claim was apparently denied on the finding that no transfer of property from abroad to the German Reich could be detected, a dubious result to be sure. 

In 2002, Clara Levy’s heirs made an application for the return of the Corinth painting, arguing that it was confiscated from Clara’s effects before the 1940 shipment left Luxembourg and that the painting never reached the family members in New York who were its intended recipients.  The authenticity of the signature of Clara’s daughter else Bergmann on the supposed receipt was also challenged. 

The Bavarian State Painting Collections rejected the claim on the theory that it could perceive neither an outright misappropriation, nor a sale under duress.  From the transfer to Clara’s daughter Else Bergmann, Bavaria inferred a free-willed transfer, confirmed (in Bavaria’s view) by Else’s signature and the receipt stamp by Valentin’s gallery.  Bavaria placed great reliance on the letter from Rosengart that (supposedly) describes the public auction of the painting in the United States.  In the words of the Limbach Commission (presumably paraphrasing Bavaria’s initial rejection of the claim, translation mine):

There are no known instances if Valentin using works seized from the persecuted in Germany or areas occupied by German troops.  There would be no clue that Valentin had received the painting from German troops in the second half of 1941

In going on to reject the request that the Bavarian museums restitute the painting now, the Limbach Commission starts from the premise that the undisputed fact that Clara Levy and her heirs were persecuted as Jews, and/or had to flee and conceal themselves, does not necessarily lead to the conclusion that the Corinth painting is itself the object of Nazi looting.  That is a relatively facile assertion however; no claimant can or should win restitution merely by alleging status or persecution.  Of course there must be some further link.  But the straw man has been hoisted, so the Commission proceeds to knock it down.

The Commission relies principally on two offers of proof, one potentially persuasive, but one almost useless.  The appearance of the painting’s name on the bill of lading is clearly a problem for the claimants.  A reasonable person could conclude (assuming it looks as the Commission describes) that the painting did indeed arrive in New York, shipped by Clara Levy to her daughter, who from there sold the work at auction.  More on that in a moment.  The Commission concluded, not unreasonably, that the fact that Paula Levy later came to have the bill of lading likely means that the shipment did indeed arrive to the family.

But the Commission’s citation to Paula Levy’s description in the (seemingly speciously denied) 1959 claim gives the game away a bit.  Why would it matter what Paula—who would not necessarily have had knowledge of where Clara had hung the painting at a time when Paula’s relationship to Fritz is not explained—said about where the paintings were? 

Reviewing all this, the Commission concluded that it was “extremely unlikely” that the painting would have been sent to New York by the Nazis after seizing it, particularly because it was not of the style labeled “degenerate” by the Nazis (implying that stylistically favored paintings would have been retained).

This too, does not withstand logical scrutiny.  Most directly it gets the dates wrong, finding implausible that the Nazis would have shipped art to New York in late 1941 with the war underway.  If the painting arrived in New York as the Commission believes, however, it wasin early 1940, not late 1941.  And, the United States and Germany were not at war in either 1940 or 1941 (at least until December).  While conditions were obviously tense, non-intervention was a major political movement in the United States, and paintings removed from German museums as “degenerate” were absolutely flowing to America—and Valentin’s gallery—throughout that interval.  The conclusion that  the re-sale back to Europe in 1949 or 1950 proves good title as of 1941 just does not follow.

The Commission’s reliance on Valentin’s own Jewish background as insulation from suspicion over the painting’s title also falls short.  First off, whether or not one believes it was justified under the circumstances, there is no question that art seized in Germany (particularly museums) flowed through Valentin to the American market.  Many believe that Germany’s own conduct justifies that, but it certainly happened.  Second, for anyone to contend in 2014 that the mere fact of Jewish ancestry lays to rest any further inquiry simply hasn’t paid attention to the Gurlitt story. 

None of this answers another unanswered but important question, however: the significance of why the painting was shipped to America, even if the sequence was exactly as the Commission says.  To put his in perspective, consider the circumstance of Clara Levy and her family in 1940.  They had fled their own country, accused of responsibility for all the world’s ills.  They had found refuge and economic stability in a neutral country that, like Switzerland (but not Belgium) had been spared the brunt of the German army’s mischief in the First World War.  Then in 1940 the German Army sweeps west, absolutely unstoppable.  Did Clara Levy have a choice about what to do with her property?  What was not sent, sure enough, was promptly seized.  To perceive free will in any part of that chain of events is to not understand the situation at all.

The opinion waives this away without actually addressing it, stating that there can be “no doubt” that if there was an auction in New York, then the heirs received a fair market price for it at the time.  But why is that so clear? 

This is the second case in a row in which the Limbach Commission has brushed away a claim, which is itself of note.  Also of note is that it is the second case this year involving the Bavarian State Collections’ post-war acquisition of potentially looted art.  The Mendelssohn-Bartholdy heirs claiming title to Picasso’s Madame Soler in the Pinakothek der Moderne—who intially asked Bavaria to submit to the Limbach Commission but were refused—were unable to persuade the U.S. District Court in New York to permit its case to proceed because the judge concluded that the post-war sale had taken place in Europe, rather than New York.  While their intentions are unknown, the Levy heirs could plausibly make out an expropriation exception claim in U.S. court against Germany over the Corinth painting, a jurisdictional theory distinct from the Picasso claim now on appeal. 

This story is likely not over yet.
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