Case Review: David Toren v. Federal Republic of Germany and Free State of Bavaria – Task Force Confirms Origin of Liebermann Painting

By Larissa Neumayer *

On 5 March 2014 David Toren, descendent and heir of David Friedmann (who died in 1942) filed a complaint in Washington DC against the Federal Republic of Germany and the Free State of Bavaria seeking the return of a Max Lieberman painting, “Two Riders on the Beach”. Toren is the first claimant to initiate restitution proceedings for looted art following the discovery of the Munich Art Trove (ItsArtLaw.com), in the home of Cornelius Gurlitt (28 December 1932 – 6 May 2014), son of Hildebrand Gurlitt, one of the prominent art dealers who was working with the Nazis during World War II. Yet, it seems Toren and any other potential claimants are put on hold until other parties involved agree on the next steps. These parties are the German Federal Government, the Munich Task Force, and the prospective heir to Cornelius Gurlitt, Bern Art Museum in Switzerland.

Before evaluating Toren’s case and recent developments in more detail, this article will first outline the work of the task force “Schwabinger Kunstfund” (a.k.a. Munich Art Trove).

Almost two years after the discovery of the trove, in November 2013 the Federal Government of Germany and the Free State of Bavaria set up a Task Force, headed by the lawyer Ingeborg Berggreen-Merkel, to establish the origin and ownership of art works in the Munich Art Trove. The Task Force is based in Berlin and consists of about 20 national and international experts, including members of the Jewish Claims Conference and the Holocaust Era Asset Restitution Task Force.

In an interview given to the German newspaper Tagesspiegel last December, Berggreen-Merkel described how the Task Force would conduct the provenance research to determine whether due to persecution, some paintings might have been sold at less than a fair value or handed over under duress (“verfolgungsbedingt entzogen”). Over the following months, it has been reported that the team of experts has been working with the public prosecutor’s office of Augsburg. Information about hundreds of the works found in Gurlitt’s possession but not the entire collection was published on the online platform Lostart.de. In general Task Force’s progress is hard to evaluate as its work is conducted in strict confidentiality.

The Task Force has been criticized for not acting quickly enough (especially right after some looted works were identified) as well as for not providing a sufficient degree of transparency. As journalist Ulrike Knöfel points out, the Task Force does have access to Hildebrand Gurlitt’s accounting records and it should therefore be possible to establish the paintings’ origins easily (Spiegel Online, 03/11/2014). The legal team hired by Gurlitt before his death and attorneys in charge of Gurlitt’s estate have maintained that most of the works in the Gurlitt collection were rightfully owned by their client (see Irina Tarsis’s article Whois Gurlitt.info?). The last will and testament left by Cornelius Gurlitt has been reported as naming a museum in Switzerland (Kunstmuseum Bern) as the heir to the collection.

So far neither the Task Force nor the public prosecutor’s office has revealed any information contained in the Gurlitt family records. Moreover, in March 2014, the Bavarian Higher Administrative Court ruled (Az. 7 CE 14.253) that reporters were not entitled to demand the disclosure of a complete list of Gurlitt’s trove (see Steffanie E. Keim’s article Gurlitt Saga Continues: U-Turn or Rotary?). Nevertheless, if the Gurlitt business records were to be made public, it would not be the first time that accounting records appeared on lostart.de. For example, journalist Julia Voss writing for FAZ online (Frankfurter Allgemeine Zeitung, 04/13/2013) examines the story of a Munich auction house Auktionshaus Neumeister and its handling of the 1936-1945 historical business records. The previous owner of the auction house, Adolf Weinmüller, sold thousands of Nazi-looted objects between 1936 and 1945. In 2008, Katrin Stoll, current owner of the auction house, began making these auction catalogues public – including Weinmüller’s personal comments ­– in order to trace the rightful owners.

Thus, the question arises about whether to prevent the disclosure of Gurlitt’s existing accounting records – decision to do so has precedent and is justifiable. As Voss describes in her article, there is a fine line between discretion and dishonesty. The issues of discretion and transparency will have to be addressed in order to avoid further criticism.

Initially, the commission has been given a time frame of one year to complete the evaluation of the trove. So far the Task Force has only identified two of those paintings as being Nazi-looted art. The first object in question is the painting “Seated Woman” by Henri Matisse, most likely stemming from art dealer Paul Rosenberg’s collection (see The Art Law Report, 07/12/2014). The second painting verified as confiscated by the Nazis is Liebermann’s “Two Riders on the Beach”. It belonged to David Friedmann, David Toren’s great-uncle. Friedmann was a successful industrialist and businessman who lived in Breslau (Wrocław in Poland) and owned an extensive art collection that included works by Courbet, Pissarro, Rousseau and Liebermann.

Toren, now almost ninety, recounts his story in the Complaint. In 1939, at fourteen he left Germany on a train (organized by Kinder Transport) to Sweden, leaving his entire family behind. His parents died in Auschwitz four years later.

“Toren has no heirlooms other than a single photograph of his family to remind him of his parents, and nothing that belonged to his family that he can pass on to his son and grandchildren.” (Complaint, par. 5)

Toren’s claim includes letters that give evidence that the Nazis seized Friedmann’s collection and that Hildebrand Gurlitt subsequently acquired the Liebermann painting.

“Gurlitt worked closely with the Gestapo to steal art from Jews. Sometimes he collected and curated art that had been seized by the Gestapo, and other times the actually directed the Gestapo to loot Jewish homes to seize certain valuable collections.” (par. 36)

Apart from the recovery of the Liebermann painting, Toren seeks an order requiring the defendants to publish a complete list of the art found in Cornelius Gurlitt’s possession and provide all available information about the provenance of the entire trove. This would include the aforementioned accounting records.

Regarding the grounds of his claim, Toren, who is represented by attorney August J. Matteis (Weisbrod Matteis & Copley PLLC, Washington, DC), bases his arguments mainly on wrongful possession and bailment. In his article, Nicholas O’Donnell (Art Law Report, 03/06/2014) discusses especially the second ground, bailment, and its “creative” nature in more detail. The defendant’s motion to dismiss the case was submitted on 9 October 2014 by Jeffrey Harris (Rubin, Winston, Diercks, Harris & Cooke, LLP, Washington, DC). It is based on a lack of subject matter jurisdiction (due to immunity, 28 U.S.C. § 1602, et. seq., Foreign Sovereign Immunities Act). On October 22, David Toren filed an amended complaint in response to the motion to dismiss for lack of jurisdiction. In par. 20 and 21 he argues:

“Pursuant to the FSIA, “A foreign state shall not be immune from the jurisdiction of courts of the United States . . . in any case in which the action is based . . . upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” 28 U.S.C. § 1605(a)(2). Defendants’ acts took place outside the territory of the United States because Defendants seized “Two Riders” and other works of art from the Friedmann Collection from Cornelius Gurlitt in Munich, Germany, in or around February, 2012. Defendants then entered into a bailment contract with Toren when they indicated their intention to store the seized artworks until they could determine the artworks’ ownership, and Toren submitted documents to Defendants pursuant to that bailment contract.“

According to Toren, Germany entered into a bailment contract when seizing the painting in Munich hence engaging in “commercial activity“. Furthermore, Germany’s continuing refusal to return the painting causes a “direct effect“ in the United States. The case has been assigned to Judge Amy Berman Jackson. It remains to be seen if the lawsuit in Washington will be successful. Toren’s attorney confirmed that they would proceed until the painting is returned.

While in an August Press Release(08/18/2014) the Task Force explicitly identified David Friedmann’s heirs as rightful owners of the painting, nonagenarian Toren is still waiting for this piece of his family history to be returned; recent developments – death of Gurlitt, his last will regarding the disposition of the collection, the pace of the Task Force investigation ­– seem to slow down the process even more.

In his will, Cornelius Gurlitt bequeathed his entire collection to the Kunstmuseum Bern in Switzerland. According to German law (German Civil Code, Section 1944 par. 3) the museum has to decide within six months after being notified of the intended gift whether or not to accept the inheritance. (Even though no official statement has been made to date, it has been reported that the museum intends to accept the testamentary gift in November 2014.) Furthermore, in February 2014 more than 200 paintings were found in Gurlitt’s house in Salzburg (Aigen), Austria. The Austrian “subsidiary” of the trove exceeds the estimated market value of the Munich collection considerably, despite the fact that the collection is small in volume. It includes paintings by Claude Monet, Édouard Manet, a bronze sculpture by Auguste Rodin, and drawings by Cézanne, Picasso and Gauguin. The artworks located in Salzburg would also be covered by Gurlitt’s testament and could therefore be part of the Swiss museum’s inheritance. In case the Swiss museum will indeed accept the gift, Austria’s State Historic Preservation Office (“Bundesdenkmalamt”) would have to authorize export of the Salzburg fragment. In the meantime, other potential heirs to Cornelius Gurlitt (such as a relative domiciled in Spain) already announced intentions to contest the validity of Gurlitt’s testament.

Another important factor that has to be taken into account is that before his death, Gurlitt declared that he was willing to comply with the Washington Conference Principles on Nazi-confiscated Art (1998), which were endorsed by 44 countries, including Germany. These eleven non-binding principles aim at ensuring due care when identifying and handling Nazi-looted art.

Although the Washington Principles would usually not apply to individuals, Gurlitt’s declaration (see Joint press release of the Bavarian State Ministry of Justice and the Federal Government Commissioner for Culture and the Media, Press Release 04/07/2014) constitutes a contract between him and the Federal Republic of Germany and the Free State of Bavaria. According to the Washington principles (par. 8) a “just and fair” measure should be taken in case an artwork is identified as being looted. Even though the wording of the Washington principles is not overly precise, Gurlitt explicitly agreed to return a painting once its provenance points at the rightful owner. Gurlitt’s heir, the Kunstmuseum Bern, would be legally bound by this contract.

While the discovery of the Gurlitt trove infused optimism that art works lost during the Nazi regime survived and returned to the public eye, many grave questions were triggered. Were 21st century government agencies able to move fairly and swiftly to resolve the historical injustice? What are the reasons for the slow response and lengthy evaluation before necessary steps are eventually taken? Should public museums, such as the Kunstmuseum Bern, accept such a controversial inheritance, and how should the material be treated before and after its accessioning? Toren’s case is pending a hearing but to date none of the paintings from the Munich or the Salzburg troves have been returned to their rightful owners and hundreds of artworks still remain unpublished and inaccessible to private research.

Sources: (last accessed 10/05/2014)

About the Author: Mag. iur. Larissa Neumayer, LL.M. (LSE) is a contributing writer with Center for Art Law; she is interested in art/cultural heritage law and litigation and may be reached at larissa [dot] neumayer [at] gmail [dot] com.

3 thoughts on “Case Review: David Toren v. Federal Republic of Germany and Free State of Bavaria – Task Force Confirms Origin of Liebermann Painting

  1. Larissa Neumayer is to be deeply congratulated and thanked for her in depth article “Case Review: David Toren v. Federal Republic of Germany and Free State of Bavaria – Task Force Confirms Origin of Liebermann Painting”.

    The ongoing International effort to return Nazi looted works of art to the descendants of the rightful owners is indeed important and necessary. Alas, as Ms. Neumayer has observed this effort has moved at a relatively snail’s like pace as the last rightful owners grow old and die.

    The topic of Nazi looted Artworks has always been a subject of personal concern and particular interest to me, not only because many members of my family perished in the death camps but also because I am myself an artist and “Old Masters” expert.

    See: OldMasterPortraits(dot)com http://www.OldMasterPortraits.com

    Even for me, an individual who has always been outraged by the looted art crimes of the Nazis and their art dealer accomplices, the complicated nature of “Restitution of Nazi looted Art” has occasionally placed me in an awkward and delicate position.

    Many years ago when I was helping to decorate a fabulous Chateau with exact hand painted life size replicas of some of the world’s most famous Old Master masterpieces by such artists as Sir Peter Paul Rubens, Sir Anthony Van Dyck, Gainsborough et al. I found myself confronted one day within arms reach with a rare and valuable Nazi looted work by Boucher.

    It was hanging over an ornate marble fireplace. Just seconds before any words could issue from my lips, the owner of the magnificent Chateau volunteered that it was one of his favorite paintings in his collection. He stated that he had acquired it at an auction in Vienna and that it “still had several Nazi Swastikas stamped on the back of the painting.

    Apparently the idea that the painting’s history should be researched and an attempt made to try and discover if there were any surviving relatives/descendants had never occurred to this collector- or if the thought had entered his mind, he had quickly dispensed with any such idea.

    Imagine my predicament. Here was an individual, born into poverty, who rose in life the hard way, and who donated tens of millions to worthy causes every year of his life.

    Should I have alerted Interpol, et al. gone to the New York Times, informed all the experts and institutions that track and investigated Nazi looted Art from the Holocaust period ?

    Should I have visited untold headaches, problems and possibly undeserved shame on this individual and even possibly tarnished his stellar reputation as a philanthropist and a doer of “good deeds”. Clearly his obsession with and love of Beauty made it impossible for this individual to allow himself to get too overly concerned with a few faded ink stamps on the back of an old but still exquisite Masterpiece.

    Each time I visited the Chateau to oversee the hanging of my large Old Master replicas, I would gaze at the French Masterpiece from whose back, no one had ever thought to remove the still visible Swastikas, as if the meaning of Nazi Swastikas on the back of a work of art was no big deal and carried little importance one way or the other in the larger scheme of things.

    I have lived long enough in enough parts of the world, to know that for huge numbers of people, the Holocaust with all its horrific murders and looting of private property, is simply one more event in history’s infinitely long history of such violent and bloody events involving murder, mayhem and outright thievery.

    For those of us who cannot place flowers on their parents’ and grandparents’ gravesites because their ashes went up the chimneys at Auschwitz, Sobibor and Buchenwald and so many other of the Death camps from Hell, it is terribly important that at least the objects they owned, whether a priceless work of Art or even a small infant’s spoon be returned to the rightful owners of such objects.

    The entire subject of “Holocaust Restitution” is neither simple nor easy.

    It is fraught with a mountain of complicated litigious questions as Ms.Larissa Neumayer has so carefully and expertly alluded to in her eloquent and for some, including myself, very affecting and poignant essay.

    It has so often been said that “Justice delayed is Justice denied”.

    But in the case of all the still missing Nazi looted works of Art, (likely forever in many instances), for every single item that is found and returned to its rightful legal owner, it is as if a small, perhaps infinitely narrow ray of Justice, has descended from the Heavens, through all the dark clouds of the Third Reich, of one of the most barbarous periods in human history.

    The discovery of the Gurlitt trove of Holocaust era Nazi looted Art masterpieces represents in a sense a monumental challenge to all parties concerned.

    Why all the secrecy and refusal to publish and reveal details of the illegally obtained collection? Why is everything concerned with this matter moving at such a snail’s pace and even suspiciously slow as if some parties involved are hoping certain aspects of “Statutes of limitations” will eventually kick in.

    How can anyone, possessing of even the least germ of ethics and morality and even the smallest concept and iota , of simple, common human Justice not be troubled by the apparent willingness of an institution such as the Kunstmuseum Bern, to accept such a controversial inheritance as Nazi era looted works of Art.

    Has the Kunstmuseum Bern in the end, no shame at all ?

    If all possible efforts to locate the rightful, legal owners of this mountain of looted Art fail, there remains one and truly only one proper venue for these masterpieces to be moved to and permanently exhibited.

    Anyone with the least imagination and sense of Justice knows the only proper place would be a special new Museum in Israel to be built at Yad Yashem, in Jerusalem, perhaps located in the vicinity of The Garden of the Righteous Among the Nations.

    There the Souls of all who perished and those who tried to save them, will be permanently reunited with all these beautiful works of Art at long last and forever.

    This would constitute a fitting resolution and proper ending to the many challenges raised by Larissa Neumayer’s eloquent story.

    She is to be profoundly thanked for telling it.
    __________________________________________________

    David Pakter, M.A., M.F.A.

    OldMasterPortraits (dot) com
    http://www.OldMasterPortraits.com

    • Thank you so much for your wonderful comment on Larissa Neumayer’s article. Thank you for sharing your experience and your opinion on what ought to be done with works that were looted during the Holocaust and have yet to be returned to their rightful owners or their heirs.

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