In March 2012, the Federal Supreme Court (Bundesgerichtshof) found in favour of the heir of Jewish art collector Hans Sachs in a restitution case. In my view it created a new precedent for restitution claims for a large class of lost art. The authors of an op-ed piece in today’s Frankfurter Allgemeine Zeitung agree, and heavily criticize the judgment of the Federal Supreme Court precisely for that reason – they call it “a wrongly decided and dangerous judgment”.
In many ways, the Hans Sachs case was factually rather unique, and does not lend itself easily to generalizations (see my earlier summary). The authors, Ludwig Pufendorf and Ulrice Michelbrink, pick up on some of the factual issues: They emphasise that Hans Sachs during his lifetime did receive monetary compensation for the expropriation he had suffered; he was paid DM 225,000 in 1959. Furthermore, Hans Sachs had always stated that he did not want to pursue claims to his collection any further. They do not, however, cite the Federal Supreme Court’s rebuttal of these arguments, namely that Hans Sachs made these statements at a time when his collection still was inEast Germany, and there was no realistic chance of him ever getting access to it, as long as the Berlin Wall stood.
Pufendorf and Michelbrink share some interesting insights into the negotiations that went on before litigation was commenced, and then go on to explore in more detail to what extent the judgment was consistent with previous restitution case law, again heavily criticizing the Court for not having put the matter to the Joint Senate (Gemeinsamer Senat) of the Federal Supreme Court. I think they wrongly criticize the Court for the construction of “lost” property, as they fail to answer how you cope with such property when it is found again.
On balance, I believe that the case was rightly decided. As Pufendorf and Michelbrink note, with regret, the Deutsche Historische Museum (DHM) decided not challenge the judgment before the Federal Constitutional Court (Bundesverfassungsgericht). Thus, the judgment stands at the authoritative interpretation of the law.
Where I, after a first reading of their arguments, would tend to agree with Pufendorf and Michelbrink is the issue of double compensation: Should the heir be obligated to repay the 1959 compensation? I believe he should. After all, the compensation was paid for the loss of the collection, and the reason for the compensation has fallen away, at least in part, since the collection was returned. I say at least in part, since only some 4,200 posters ended up in the DHM’s possession, and were returned, whereas the collection originally comprised some 12,000 items. However, that appears to be a separate legal issue that was outside the scope of a dispute between Hans Sachs’ heir and DHM. It certainly was not an issue that the Federal Supreme Court could have addressed in its judgment, as no counter-claim against the heir for repayment was pending. But a further analysis of the repayment issue will most likely unearth intricate limitation issues….
Pufendorf and Michelbrink’s piece was triggered, as they say, by the news – reported here earlier – that the Hans Sachs Collection will be up for auction, with an estimated value of USD 5.8 million, in New York in early 2013. I understand their frustration that the collection will now most likely cease to exist in its current form, and will not remain available to the public. It may even be true that this is not what Hans Sachs wanted, but the law needs to defer to the decision of the owner. The same is true for the frustration that Peter Sachs, the heir, did not accept the recommendation that came out of the voluntary mediation process with the assistance of the Consultative Body (Beratende Kommission) – you may not like the outcome, but again that is the very nature of the voluntary and non-binding process. I do not believe you can argue that the Court should have given weight to that process, as they seem to do.
Note: Ludwig von Pufendorf and Ulrice Michelbrink, Herausgabe um jeden Preis, Frankfurter Allgemeine Zeitung, November 15, 2012, p. 8 (print edition only). The authors acted for DHM negotiations with Hans Sachs’ heir and before the District Court (Landgericht)Berlin.
The illustration above shows Julius Klinger’s 1912 poster “Müller Extra – Suppliers to His Majesty the Emperor”, (c) Deutsches Historisches Museum.