Are “Flight Goods” Different than Looted Art? Questions About Fair Value and Duress in Wartime Resonate After Recent Limbach Commission Decision

Art Law Report 3 September 2014
By Nicholas O'Donnell 

A conference was held last week at the Oskar Reinhart Museum in Winterthur, Switzerland, entitled “Fluchtgut: Geschichte, Recht und Moral” (Flight Goods: History, Law and Morality).  The objective conference was described in its program as follows (my translation):

As a result of the Nazi policies of persecution, expropriation, and plundering, Switzerland has played a significant role as a destination and transit country of flight goods. . . .  “Flight Goods” are considered cultural goods that were brought to safety into exile by their owners to protect them from governmental access or destruction.  Unlike looted goods, flight goods were and are often disposed of by the owners and their successors in neutral countries.  But difficult questions remain with flight goods, of how to evaluate such a sale against the backdrop of a possible economic hardship, which may have been caused by the changed balance of power in the owners’ home.

While I was not able to attend, Florian Weiland at the Südkurier has written an excellent summary of what sounds like a fascinating day.  The conference and its question are timely after the recent decision by the Limbach Commission in Germany (German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property, or Beratende Kommission to recommend against the restitution of Lovis Corinth’s Drei Grazien (Three Graces) held by the Bavarian State Painting Collections (Bayerische Staatsgemäldesammlungen).  If the Corinth is not “looted art” in the classic sense (though this point remains fiercely disputed), it would certainly qualify as “flight goods” at the very least.  That is to say, even if the occupying Nazi authorities did not seize the painting before it left Luxembourg (in which case no one would dispute that it was looted art), it was most certainly disposed of as a result of the persecution at home in Berlin and in Luxembourg of Clara Levy and her family.  More on that below.  The conference also spotlighted hard questions about defining fair transactions in retrospect in times of persecution and war. 

Weiland’s overview of the conference in Winterthur (in German) begins with a similar premise: even if there is consensus about what should be done with looted art, what if the sale of objects was of necessity rather than compulsion?  Is there a moral obligation to return the works?  He notes that “at least from a Swiss perspective, the answer seems clearly to be ‘no’.” 

The Washington Principles here come into focus.  Monika Tatzkow, an art historian and co-author with Melissa Müller of the seminal Lost Lives, Lost Art: Jewish Collectors, Nazi Art Theft, and the Quest for Justice, is cited as saying at the conference that there is no reason to approach flight goods any differently than looted art in this respect.  By contrast, Weiland reports, Swiss historian Esther Tisa Francini fears an “anarchy of restitution” and argued that flight goods should not be considered to be looted. 

Oskar Reinhart was cited as telling example.  He never acquired stolen art, and it is generally accepted that he paid fair market prices that did not exploit the circumstances of sellers.  But there is no way around the fact that the amount and quality of works available in Switzerland during the Nazi regime was unprecedented.  By a simple matter of supply and demand, that calls into question the starting presumption about fair market prices. 

Quite interestingly, Jutta Limbach herself gave a presentation at the Winterthur conference about “insight into the Commission’s activities, which positions itself repeatedly by deciding against the views of the Swiss lawyers,” presumably meant to accept the possibility of flight goods as looted art. 

The last aspect of the conference that Weiland describes is a discourse about Hans Posse.  Posse is a well-known figure in German speaking circles.  Posse was the director of the Dresden museum in the Nazi period, and his relative complicity in acquiring works of former Jewish ownership is a matter of debate.  Posse acquired four works from the Freund collection at a Swiss auction at Hitler’s instruction.  The Limbach Commission decided in favor of restitution of those works.  Swiss authorities, by contrast, have seen no reason to discuss restitution of objects from that same auction. 

Lest anyone think that Switzerland is an outlier on the point, however, the Three Gracescase cannot be ignored or, frankly, reconciled with the Freund decision alluded to by Limbach.  To return to the question posted in the program’s conference: what about sales out of necessity?  Is there a qualitative difference between the Levy family, surrounded on all sides by Nazi occupation, but for which they had no plans to sell their art, and a Jewish collector in Germany proper?  Is the threat any different, or the coercive need to dispose of a valuable object any less real?  From here, to parse those categories is to lose the forest for the trees, particularly if guided by the Washington Principles’ directive to achieve fair and just resolutions.  To distinguish the presumption that has been applied since the Allied Collecting Points after the war—that a sale by a Jewish collector in Germany or in an occupied area was presumptively coercive—from the export by the very same Jewish collector to a market abroad, seems forced. 

It is also important to remember what is a matter of presumption and what is a matter of proof.  If one rules out flight goods as a category for restitution, then the conversation is over.  Even if one allows for further exploration, however, there is still the matter of what happened in a particular case.  It may be that in a given case, whatever the initial motivation, the sellers were able to achieve a fair market value.  But that is far too complicated a question to answer with sweeping assertions. 

For one, as noted above, the very concept of the market was distorted by the Nazis’ activities.  They were perfectly happy to get less than full value for “degenerate art” that they had seized; why should we suppose now that dumping a trove of hitherto unavailable works—particularly Old Masters—would have had any less of a downward effect on prices?  And it so, then isn’t there further analysis to be performed about what the owners received at the time?  That is to say, Curt Valentin’s gallery more or less created a market in works of a certain kind in large numbers, so it seems entirely fair to ask whether, even if Clara Levy’s daughter did receive the painting and did sell it at an auction, whether circumstances necessarily deflated the price that she received. 

There is precedent for viewing “market prices” skeptically—particularly the earlier decision of the Limbach Commission itself when it recommended the return of two paintings by renowned Expressionist Karl Schmidt-Rotluff: a 1920 self-portrait and a 1910 landscape entitled “Farm in Dangast” that once belonged to Robert Graetz, a businessman from Berlin who was deported to Poland in 1942.  The Commission’s recommendation (adopted by the government of Berlin) noted the downward pressure on the price by virtue of the circumstances

Nor, as we discussed in reaction to the initial decision, is the fact of sale or transfer to New York at all clear.  Noted art lawyer and lecturer Lucas Elmenhorst wrote an article in theHandelsblatt on August 28, 2014 entitled, appropriately, “There are Still Doubts.”  Elmenhorst quotes the claimants’ attorney, Imke Gielen, as saying “Much of what they [the Commission] regard as undisputed or uncontested is not.”  “None of Clara Levy’s children could confirm that the picture actually arrived in New York,” she went on.  Nor, as Gielen noted, is there any corroboration whatsoever for the assertion that the painting was sold at a public auction; there is no record of a sale or catalogue in which the painting can be found.  Relying on a letter from a man who later sold it (and who therefore had every interest in asserting a clean title) is a bit thin. 

Gielen pointed to Valentin’s role in acquiring works at the infamous Galerie Fischer auction in Lucerne in 1939.  With a little more thought, the role of Valentin is one of the lingering problems with the Limbach decision.  Many regard Valentin as an opportunist, and some even as a collaborator.  But whatever one thinks, the presence of a painting in the Buchholz Gallery is hardly a sanitizing factor on its chain of title.  Yet that is how the Limbach Commission seemed to regard it. 

In any event, the Winterthur conference was clearly a timely event, and one hopes that its collected papers will be published at some point.
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