On 2 October 2018, the Paris Court of Appeal confirmed the 2017 judgment that resulted in a remarkable art restitution case. On 7 November 2017, the Tribunal de grande instance de Paris (the High Court of Paris) ordered the restitution of the Pissarro painting to the heirs of Simon Bauer, whose entire art collection was stolen in 1943.
This post was reviewed and updated on 19 August 2020
Born in 1862, Simon Bauer was a successful businessman and a passionate art collector. As a Jew, Bauer was persecuted by the anti-Semitic Vichy regime, but was lucky enough to survive the Holocaust. In October 1943, his entire art collection of 93 paintings was stolen. This included a gouache entitled La Cueillette des Pois (Picking Peas) by Camille Pissarro which was sold by the Vichy-appointed art dealer Jean-François Lefranc. After Bauer was released from the Drancy internment camp, he tried to recover his stolen collection under French restitution regulation.
Under the French Ordinance of 21 April 1945 (1945 Ordinance), all seizures carried out by the enemy or collaborators, and later transactions of such property, are considered null regardless of the time that has passed. Therefore, transactions that had taken place under duress were invalid and had to be reversed, irrespective of whether or not there was good faith on the part of the acquirer. On 8 November 1945, a French civil judge ruled that Bauer’s restitution request was submitted within the prescribed period, that the sale of the Pissarro painting was void, and that the artwork must be returned to its rightful owner (the Bauers). This decision was later confirmed by the Paris Court of Appeal in 1951. Despite this judgment, the painting was not returned to Simon Bauer, who died in 1947, or to his rightful heirs.
In 1965, the painting resurfaced when it was sold in Paris to an American gallerist. After the sale was concluded, the seller was arrested and the artwork was seized by the French authorities on the grounds of its status as looted art. For unknown reasons, the painting was later returned to the gallerist who had purchased it, not to Simon Bauer’s heirs. On 22 June 1966, the painting was sold to an unknown buyer by Sotheby’s London. Using the name David B. Findlay, that buyer obtained an export licence from la Direction des Musées de France (the Directorate of French Museums).
Decades later, the painting reappeared and was auctioned by Christie’s New York on 18 May 1995. It was purchased by prominent American art collectors Bruce and Robbi Toll for $800,000.
In 2017, Bruce and Robbi Toll loaned the painting to the Musée Marmottan Monet for the exhibition “Camille Pissarro, the first of the impressionists”. When the grandson of Simon Bauer, Jean-Jacques Bauer, discovered that the Pissarro painting was on display in Paris he decided to take legal action. In May 2017, the court granted his request to have the painting impounded pending a ruling on its ownership.
The latest ruling by the Paris Court of Appeal (on 2 October 2018) upheld the earlier decision by the High Court of Paris (on 7 November 2017). This confirmed that the Bauer’s post-war ruling based on the 1945 Ordinance was enforceable and that the Pissarro painting must therefore be restituted to the Bauer heirs.
This is the first time that the 1945 Ordinance has been used against a private collector since the 1990s, when renewed interest in Nazi-looted art resulted in the adoption of the 1998 Washington Principles on Nazi-confiscated Art. This soft law instrument offers guidelines in resolving ownership issues and strengthen efforts to bring justice to the victims of the Holocaust.
Bruce Toll told the court that the painting was purchased in good faith in 1995, saying: “It was sold by Sotheby’s 30 years earlier and before that, it had an export licence.” While the French Court did not dispute whether the purchase was made in good faith, it did not award the Tolls any financial compensation for the loss of their painting.
The lawyer representing the Tolls, stated to the New York Times: “It is surely not up to Mr. and Mrs. Toll to compensate Jewish families for the crimes of the Holocaust.” The lawyer for the Bauer family welcomed the decision and suggested that Mr. and Mrs. Toll could consider bringing legal action against Christie’s New York for selling Nazi-looted art, however the Tolls’ lawyer replied that the statute of limitations on the 1995 purchase contract was expired, so such a claim would not be possible.
The outcome of the Bauer case alarmed the art world at first. While the decision may make some private art collectors more hesitant to lend their artwork to museums, fearing the potential loss of a valuable painting, the ramifications of the ruling are not as far-reaching as originally feared.
Indeed, this judgment could set a precedent in the sense that the 1945 Ordinance can be used against private collectors and result in restitution without financial compensation. However, the Bauer case was unique in that the heirs had previously received a judgment in 1945 that confirmed their ownership, and that judgment was made under French restitution law.
The outcome of this case could not have been possible without these unique facts, therefore this ruling does not necessarily set a precedent which would apply to many other cases. French restitution law, unlike the laws of other European countries, allows little or no weighing of interest of the different parties involved, which is why a good faith purchaser could not be awarded ownership.
In addition, it is uncommon that a European court finds itself competent to decide on the merits of a Nazi-looted art case. A number of European governments have tried to fill this gap by establishing national Alternative Dispute Resolution methods so that Nazi-looted art claims, mainly against public institutions, can still be decided on the merits of the case.
What does this mean?
The recent ruling reinforces the importance of conducting adequate due diligence and provenance research. The Bauer case also highlights how different the outcome can be depending on the specific facts of the case and the jurisdiction that is applied.
Questions? More information?
If you want to know more about which procedure applies to your case, please contact me for more information.