Art Law: Restitution Claim for Picasso’s “Madame Soler” Against Bavaria Brought in New York

Today’s Frankfurter Allgemeine reports on a restitution claim brought by the heirs of Paul von Mendelssohn-Bartholdy in Federal Court in New York against Bavaria.* The painting in dispute is Picasso’s Madame Soler. Paul von Mendelssohn-Bartholdy sold it, in 1934, to art dealer Justin Thannhauser. It was from Thannhauser that the Bavarian State Painting Collection (Bayerische Staatsgemäldesammlungen) acquired Madame Soler in 1964. But was that acquisition a legitimate transaction?

Bavaria is taking the position that Paul von Mendelssohn-Bartholdy’s sale of the painting in 1934 was a bona fide commercial transaction, and not a consequence of measures of persecution (verfolgungsbedingter Verkauf). As a consequence, Bavaria believes that the subsequent acquistion in 1964 was not tainted.

The heirs, on the other hand, argue that Mendelssohn-Bartholdy was forced to sell the painting and other parts of his collection. The boycotts of Jewish businesses that had started in 1933 directly affected the bank in which he was a partner. As a result, he had come under severe economic pressure which left him with no choice but to sell a significant part of his collection.

Bavaria appears to feel rather strongly about its position. It has refused to involve the Limbach Commission, as the “Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property” is commonly known, after its head, Jutta Limbach, the former president of the Federal Constitutional Court (Bundesverfassungsgericht). It was formed in 2003 and serves a mediator in restituton cases, it all parties agree to involve it.

If Bavaria really believes to have such a good case, Julia Voss argues in the FAZ, why did they choose to be sued in New York rather than argue their case before the Limbach Commission? I tend to agree, in particular, since the Limbach Commission can not be accused to always find in favour of restitution. In the Hans Sachs matter for example, which we covered here in detail, it had recommended that the collection should stay in Berlin. Hans Sachs’ heir did not accept the Commission’s non-binding recommendation and ultimately was succesfull before the Federal Supreme Court (Bundesgerichtshof).


*I am not quite sure how these proceedings relate to those that were the subject of an English language article in DER SPIEGEL in October 2011, but this article set out the background in some more detail.

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