Examining The Policy Implications Of The Cassirer Decision

Mondaq 17 July 2019
By William L. Charron

A closely watched California lawsuit involving artwork looted during World War II concluded recently with a question that put a spotlight on legal rule-making: if a work of art is known to have been stolen by Nazis, is it morally 'just and fair' to allow a current, good faith owner of the art to keep it if the relevant national and international laws direct such an outcome?

The case, Cassirer v. Thyssen-Bornemisza Collection Foundation, pitted two innocent parties against each other: one (the family of the victim of Nazi looting) advocating from the basic policy principle that theft is wrong; and the other (the current owner of the formerly stolen art) arguing from the principle that people should not be dispossessed of property that they acquired through good faith and lawful conduct.

The doctrine of 'comity', or respect for the laws and judgments of our neighbors, was conceived for an international society to harmonize its various, constituent rules. Comity is based on the policy that it is better to co-exist peacefully with our neighbors by tolerating their occasionally divergent standards, than to insist on our own sense of moral and legal absolutism.

The court's decision in Cassirer is based on this doctrine.

The court noted at the outset of its analysis that, were California law to apply, the case would easily be resolved in favor of the victim's family, without any need to examine the current owner's bona fides, because, "[u]nder California law and common law, thieves cannot pass good title to anyone, including a good faith purchaser."

Nevertheless, conflict of law analysis – rooted in comity – directed application of Spanish laws, not the laws of California. The key question under Spanish laws was whether the current owner and its predecessor acted in good or bad faith when they acquired the artwork.

In an article for Art Antiquity and Law, William Charron, co-head of Pryor Cashman's Art Law Group, examines whether, in 2019, the application of foreign commercial laws (under the doctrine of comity) to the circumstances of the Holocaust is an appropriate legal and moral outcome.
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