Lilly Cassirer Neubauer, a Jew, had to undercut a painting in 1939 to obtain a visa and leave Nazi Germany at the start of World War II, fleeing a fate that could have ended in a concentration camp. It was the impressionist painting Rue Saint-Honoré in the afternoon. Rain Effect, from 1897, by Camille Pisarro. After a series of transactions, the painting ended up in the hands of the Thyssen-Bornemisza Museum, which has been exhibiting it publicly since 1993. When Claude Cassirer, a California-based grandson and Lilly's sole heir, learned in 2000 that the Thyssen owned the painting, he demanded its return, but his request was rejected. In 2005 he launched a legal war, which his children continued and which led to his now final defeat. A ruling released this Wednesday by the Court of Appeals for the Central District of California concludes that Thyssen is the rightful owner of the painting.
“The unanimous confirmation (…) confirming the Foundation's ownership of the Pissarro painting, which it lawfully acquired in 1993 to exhibit to the public in Madrid, is a satisfactory conclusion to this case,” the Thyssen Collection Foundation said opposite EL PAÍS. -Bornemisza.
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A multi-million dollar legal battle that lasted nearly two decades had been reduced to a seemingly simple question: Should Spanish or Californian law be applied? If the jury chose California, the painting belonged to Cassirer. On the other hand, if they believed that Spanish law applied, it belonged to Thyssen, which would have become owner by acquisition or usucapion because it had exercised peaceful and public ownership. The latter was the position that the judges had previously taken and which they have reiterated.
The matter was complicated because there were two conflicting rules governing the choice of law: federal law and California law. The justices initially applied the federal rule, but the Supreme Court told them they had to follow the California rule. Although this procedural issue led the lawsuit to reach the United States Supreme Court, where Cassirer won a partial victory, in practice it was the same thing. For all conflict procedure rules, the Californian judges assume that Spanish law applies and that the damage of around 28 million euros is therefore attributable to Thyssen.
The court concluded that, given the facts of the case, “the application of California law to this dispute would cause significant harm to the interests of Spain, while the application of Spanish law would cause relatively little harm to the interests of California.” Therefore, Spanish law must be applied according to the judgment to which EL PAÍS had access.
“Applying Spanish law, the court ruled that the Thyssen-Bornemisza Collection had acquired prescriptive ownership of the painting in accordance with Article 1955 of the Spanish Civil Code. Therefore, the panel affirmed the district court’s decision to uphold the judgment in favor of the Thyssen-Bornemisza Collection,” the text reads.
In a concurring opinion, Judge Consuelo Callahan wrote that she agreed with the ruling but was uncomfortable with it. “Spain, having reaffirmed its commitment to the Washington Principles on Nazi-confiscated art by signing the Theresienstadt Declaration on Holocaust-Era Property and Related Issues, should have voluntarily renounced the painting,” it said dissenting opinion. “Our decision is limited by the district court's factual findings and applicable law, but I wish it were different,” he adds.
The plaintiffs have a rather desperate option of reappealing to the United States Supreme Court, but the chances of that body allowing the case to be heard a second time, even though it clearly laid out its criteria the first time, are slim.
A long journey
Lilly Cassirer Neubauer forcibly sold the painting below market value to Jakob Scheidwimmer, a dealer and member of the NSDAP. The painting was later acquired by D. Julius Sulzbacher, from whom it was later confiscated by the Gestapo. In 1958, Lilly Cassirer Neubauer reached an agreement with the federal government, the dealer Jakob Scheidwimmer and D. Julius Sulzbacher, in which she accepted compensation of 120,000 D-Marks from the federal government to end the claims between the parties.
After several more transactions, Baron Thyssen-Bornemisza purchased Pisarro's painting in 1976 for $360,000 at the Stephen Hahn Gallery in New York. In 1993, the Spanish state acquired the Thyssen-Bornemisza collection, including the painting. The museum exhibited the Pissarro several times in different countries and for almost eight years before Cassirer claimed it as his own in 2002 and filed a lawsuit in California in 2005. He died five years later at the age of 89 and since then the legal battle has been carried on by his children David and Ana.
The plaintiff was always convinced that the Spanish state was aware that the painting, a view of the city of Paris created by Pissarro in 1897 and which ended up in the gallery of other of his ancestors in Berlin in 1900, was “the result of the plunder by the “Nazis” was .” as David Cassirer explained to EL PAÍS. “By refusing to return it, Spain is essentially denying the Holocaust,” he added.
The question of whether he was aware that it was Nazi looting is relevant because the time until he acquired the property would have been longer if he had been an “accessory” to the theft. However, the judges assume that Thyssen was the bona fide owner.
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