The monuments men and the discovery of the Munich Art Trove

On 3rd November 2013, a somewhat improbable article appeared in Focus, the German-language news review. It recounted the discovery by the Bavarian prosecutorial authorities of certain remarkable contents in a rather unremarkable place: a trove of ‘approximately 1,500′ works of art had been uncovered in the unkempt apartment of Cornelius Gurlitt in Munich. The interior was a mess: rotten food and open food tins lay strewn about, some of it 30 years old; behind these were the paintings, haphazardly lined up against the contours of the flat.

The world took note. Following the article in Focus, there were pieces that same day in Der Standard, the Daily Mail and the Guardian. The Telegraph, the Daily Express, the New York Times and the Wall Street Journal, along with countless others, followed suit on 4th November 2013.

Initial reports were sketchy, but the trove was said to include a number of works of great importance, including paintings by Picasso, Matisse, Chagall, Nolde and other artists of the early twentieth century. The articles revealed little in regards to the possible provenance of these works, nor had the Bavarian authorities themselves released any details. The media was left to speculate.

One of the other mysteries for commentators was the belated disclosure of the trove’s existence. The authorities had known about it since the beginning of 2012. The investigation of Gurlitt had begun earlier, in September 2010, after a routine check by German Customs authorities on a train from Switzerland revealed that the meek and unassuming man had with him 9,000 [euro] in cash, undocumented and undeclared. The ensuing investigation conducted by the District Prosecutor of Augsburg led to the obtaining of a warrant to search the man’s Munich home, then to the discovery of the hoard in late February 2012. Beyond a small group of investigators, the world would not find out for a further 20 months.

By 5th November 2013, it was revealed that 1,406 works of art from the apartment had been seized by the Augsburg prosecutor.  Estimates for the overall value of the work were put at over 1 billion [euro].  Soon, the prosecutor began releasing the names of the artists behind some of the works, as well as the images themselves. Hitherto undiscovered works by the likes of Otto Dix (Self Portrait), Henri Matisse (Seated Woman) and Marc Chagall (Allegorical Scene) began to be associated with the reclusive old man.

Of course, this prosecutorial method was not without controversy. Was the Augsburg prosecutor legally entitled to seize the works? Pursuant solely to alleged income tax violations? Arguments were advanced that such a seizure could be legal only in relation to a crime such as theft.  Other experts considered the seizure to be a violation of Gurlitt’s rights, since he had not been charged with any offence; and so the works should be returned.  By February 2014, despite reports of an intention by the prosecutor to return some of the works to Gurlitt, none has been reported returned. Gurlitt himself, who had quietly sat on this collection since inheriting it through his mother in 1967, was initially unwilling to relinquish his ownership claims in the works. The greatest speculation turned on the possibility that any number of these works could have once been Nazi loot, his father, Hildebrand Gurlitt, having been a dealer who worked closely with Nazi authorities.

On 10th November 2013, a panel of provenance experts appointed by the Bavarian authorities had considered the works and made certain initial findings: approximately 590 of the works in the trove may have been looted from private owners during the Second World War; approximately 380 may have come from German museums during the Nazi period; and the provenance of the remaining works was still unclear.

If the collection, or part of it, had come from Hildebrand, was his son liable for its return? And, if returned, to whom? There was of course the problem of Germany’s 30-year limitation period: it could be applied to bar causes of action even against defendants who could not prove they had obtained the property in good faith.

THE MONUMENTS MEN

As the media fervour over the Gurlitt affair began to quieten down in early 2014, publicity began to appear for a much-anticipated Hollywood film, The Monuments Men. The film, set at the end of the Second World War, is a fictionalised account of the real life ‘Monuments Men’, the Allied officers who formed part of the Monuments, Fine Arts and Archives section (MFAA), tasked with protecting historical and cultural buildings and recovering artworks from the horrors of war. The Monuments Men was directed by George Clooney, who starred in the film himself, playing a thinly-veiled version of American Monuments officer George Stout, the former curator of Harvard’s Fogg Museum. It also featured actor Matt Damon as a fictionalised James Rorimer, who would after the War become Director of New York’s Metropolitan Museum of Art, and Kate Blanchett as a character based on Rose Valland, the great heroine of French restitution, who had worked at the Jeu de Paume, the Nazis’ repository in Paris for artworks looted throughout France, surreptitiously recording and keeping the details of every item that entered and left the museum. The film’s script was written by Clooney and Grant Heslov and was based on the 2009 non-fiction book by American author Robert Edsel, The Monuments Men: Allied Heroes, Nazi Thieves and the Greatest Treasure Hunt in History, itself something of a follow-up to Lynn Nicholas’s magnum opus, The Rape of Europa, first published in 1994.

THE ART DEALER: HILDEBRAND GURLITT

The Gurlitt art collection and the Monuments Men seem unrelated apart from their contemporaneous appearance in the consciousness of the media. And yet there is a link between the two. This article will attempt to trace the historical interrelation, showing that many of the primary works that constitute the Munich art trove discovered in 2012 had in fact been uncovered, considered and confiscated by the Monuments Men at the end of the Second World War. The purpose is to perhaps shed some more light on Gurlitt’s legal rights of ownership over some of the works of art found in his apartment. What can the confiscation of these works by the Allied Army tell us about their provenance, their history and their legal status? Had the Monuments Men conducted sufficient provenance work to clarify that the works had not in fact been looted by the Nazis? These questions lie at the heart of this study.

Hildebrand Gurlitt was born in 1895 in Dresden, the son of famed architect and art historian Cornelius Gurlitt, after whom the present Cornelius was named. After serving as an infantry officer in the First World War, Hildebrand obtained a Doctorate in the History of Art, and was appointed as director of the Konig-Albert-Museum in Zwickau, Saxony in 1925. He was dismissed from this position in 1930 owing, he claimed, to a right-wing regional government that did not look fondly on his acquisition of works by progressive artists such as Max Pechstein, Emil Nolde and Paul Klee. Three years later, after Hitler’s National Socialists had come to power nationally, he was forced out of his job at Hamburg’s Kunstverein as well. With a Jewish grandmother from his father’s side, Hildebrand Gurlitt would have been considered Mischling (of’mixed blood’) under the two Nuremberg Laws of 1935, seemingly making him a prime enemy of the Nazi regime.

And yet the reality was very different. The Nazis passed the Act on the Confiscation of Degenerate Works of Art on 31st May 1938, a statute forfeiting to the State all works of moder art in the possession of German museums which were deemed ‘degenerate’ by the Nazi Party. In one fell swoop, the State found itself the unlikely possessor of a great number of works by such artists as Picasso, Klee and Kandinsky–upwards of 16,000 in fact.A plan was hatched amongst the upper echelons of the Party to try and make a profit from this windfall. Gobbels hoped the State could “make some money from this garbage”, as he wrote in his diary in 1938. A Commission for the Exploitation of Degenerate Works of Art was established, which included in its composition, amongst Nazi party stalwarts, Berlin dealer Karl Haberstock. When it came to selecting art dealers mandated to sell these holdings abroad to raise much needed foreign currency, four specialists in modern art were selected: Karl Bucholz, Ferdinand Moller, Bernhard Bohmer and Hildebrand Gurlitt.

As a sanctioned art dealer, Hildebrand Gurlitt purchased the deaccessioned works from the German State with foreign currency, with the expectation of travelling, mainly to Switzerland, for onward sales. One example alone of this process is staggering: according to purchase and transfer agreements still in the possession of Germany’s Finance Ministry, in May 1940, the Reich Propaganda Ministry sold 200 paintings to Gurlitt for a mere 4,000 Swiss Francs, including Chagall’s The Walk (Spaziergang), Picasso’s Farming Family (Bauernfamilie) and Nolde’s Hamburg Harbour (Hamburger Hafen). In the same manner, Hildebrand acquired 115 more works of ‘degenerate’ art in 1941. While the extent to which he sold these works remains unclear, at least one piece, a print by Chagall entitled Spaziergang (The Walk), possibly the very same sold by the Propaganda Ministry, has been added to the 458-item database made public on the Lost Art website following the seizure of works by the Augsburg prosecutor.

It was in 1942 that Gurlitt added another Nazi appointment to his portfolio. Hans Posse, the museum director tasked by Hitler to build up an art collection for the envisaged Fuhrermuseum in Linz, Austria, had died in 1942. Posse’s deathbed wish was to be succeeded by Hermann Voss, to which the Nazis, despite Voss’s anti-fascist leanings, acceded. Voss then chose Hildebrand Gurlitt, in preference to the self-serving and insufferable Haberstock, to act as his primary buyer for the Fuhrermuseum in France. During the Nazi occupation of France, Hildebrand made approximately ten visits to the country in order to purchase works for the collection, which was to consist of classical and traditional works befitting the Ftihrer’s reactionary tastes–certainly nothing so modern as to conceivably match Gurlitt’s professed speciality.

By the end of the War, Hildebrand Gurlitt had moved his family, which consisted of his wife and two children, Renate and Cornelius, to his mother’s home in Dresden. The city of Dresden would be bombed–mercilessly–by the Allies on the nights of 13th to 15th February. There were thousands of casualties and the magnificent town centre, as well as much of the famed Gemaldegalerie, were destroyed. Soon after, between 22nd and 25th March, managing to hitch a ride in a commercial lorry, Hildebrand took his wife, children and a large number of boxes into Bavaria, where he sought room and board from a former acquaintance, the Baron von Pollnitz of Aschbach Castle. To his surprise, the Baron agreed to take him and his family in, as he had already done for the notorious dealer Haberstock.

HILDEBRAND GURLITT AND THE MONUMENTS MEN

It was at Aschbach Castle that the US Army first came into contact with Hildebrand Gurlitt. MFAA officer Captain Robert Posey reported that Gurlitt had been found at the Castle in April 1945, stating in his semi-monthly report that “Haberstock and another dealer, Dr Hildebrand Gurlitt have been located and will be questioned by this sub-section.” (16) Posey himself placed an ‘Off Limits’ sign on the outer doors of the building. The Castle was then searched on 16th May 1945 by MFAA personnel. The report of this date does not hide the sentiments of the Monuments Men towards the two collaborationist art dealers found inside:

Present at the castle were the owner and his son, Mr H. Gurlitt
dealer from Hamburg with many Nazi-connections, who has made many
trips to France on behalf of Nazi officials and Mr Karl Haverstock
(sic) from Berlin, who was employed by Hitler for years as his
dealer and who is known all over Europe for his ruthless and brutal
methods in acquiring the art objects Hitler desired to own.

A ‘superficial’ search of the premises revealed that a number of the rooms held boxes containing a large number of works relocated for safekeeping during the war from the Bamberg Museum, the Kassel Museum, the German Embassy in Budapest and the private collection of Prince Ruess zur Lippe. Haberstock’s pieces took up two entire rooms. The boxes brought by Gurlitt were found in one of the Castle’s upstairs rooms (34 boxes of art, eight boxes of books and several mgs) and a downstairs room that revealed thirteen additional boxes.

A more thorough search was conducted two days later on 18th May 1945. In the report, Gurlitt is described as “an art collector from Hamburg with high Nazi connections”, operating “on behalf of other Nazi Officials”, who had made “many trips to France bringing back art collections”. Amongst the legitimate public-owned works found within the Castle were the collections of ‘two notorious art collectors of Germany’. Besides the works of Haberstock, this search again revealed that on the second floor, 34 boxes belonging to Gurlitt had been found (‘containing paintings’), along with two mgs and eight boxes of ‘records’, and on the first floor, thirteen ‘wooden’ boxes of art objects, also belonging to Gurlitt. The two May reports are confirmatory: there were in total 47 boxes of art allegedly belonging to Gurlitt at Aschbach Castle. At least that was what the searches turned up: there presumably could have been other works hiding nearby. Perhaps unsurprisingly, Gurlitt was “unable to give an inventory of his claimed possessions”.

There was no doubt in the minds of the Monuments Men that the collections of both Haberstock and Gurlitt were of highly dubious origin. There were, as the 18th May report states, “strong reasons to believe that these private art collections represent “Loot” from other countries”. The MFAA then took temporary possession of both collections, done ‘in the care of the US Army’, assigned a complete inventory to be made by art historian Dr Erik Berger of ‘all treasures of questionable ownership’, then summoned both Haberstock and Gurlitt for later questioning at Wurzburg. None of this seemed propitious for Gurlitt. His chances of retaining his collection, whether looted or otherwise, seemed incredibly slim.

His interrogation by US Army Lieutenant Dwight Mackay in June 1945 was an opportunity to exonerate himself and his collection from any blame. He approached this opportunity with a sense of victimisation and self-pity; and his statement should be viewed with circumspection. While tasked by Voss with the Linz project, he claimed he had “no connection whatsoever to any party official” and that “as an art dealer” he only co-operated with his “former colleagues”, by which he meant German museum directors and art dealing contacts in Paris. He did not mention his job for the Commission for the Exploitation of Degenerate Works of Art, stating instead: “I was sent to Paris on the endorsements of [my] former colleagues, the Directors of great museums”. The entire statement is replete with references to avowed anti-Nazi sentiments, including an anecdote about his time at the Hamburg Kunstverein when he had ordered that the museum’s flagpole be sawed off in order to avoid displaying the Swastika flag. In describing his visits to Paris, he took pains to specify that no threats or force had been used in order to purchase the works: “I have never bought a picture which was not offered voluntary (sic) to me”. He knew that works were being seized from Jewish owners, but continually claimed that no such works ended up in his possession. He bought from supposedly reputable and untainted dealers, specifically naming Engel, Hermssen and Barreiro. In total, he claimed during his ten or so trips to Paris to have acquired approximately 200 paintings, all of which were allegedly given over to German museums.

There are several notable elements of this statement. First of all, his income. In 1934, his income had been ‘about 10 to 12,000 R.M.’, but by 1943 it had grown to about ‘200,000 R.M.’ A substantial leap in just under a decade: for Hildebrand Gurlitt, operating close to Nazi circles did not hurt his pocketbook. He claimed to have had assets in cash and bonds, held at German banks, of upwards of 450,000 R.M. For the works of art with him at Aschbach, he suggested the rather timid pre-war value of 50,000 to 80,000 R.M. This estimate seems a malicious misstatement when compared with the much higher amounts he claimed to have paid for some of the works in Paris.

He also claimed that the family silver, some of the paintings belonging to his father and works belonging to his deceased sister, had been left in a safety deposit box at the Dresdner Bank, which was completely destroyed in February 1945. Yet there were still many works by his grandfather, noted landscape painter Louis Gurlitt, inventoried by the Allies at Aschbach. And at least one work (Chagall’s Allegorical Scene) he claimed had belonged to his sister, apparently a former pupil of the artist.

Also noteworthy is that, after eight days’ boarding with Pollnitz in the main castle, Gurlitt and his family moved into what he called a Tittle house’, presumably located somewhere on the estate. There is no note of this house in the US army’s search reports of April and May 1945. One is left to wonder whether boxes containing more works of art may have been hidden within this smaller building.

The Works Found at Aschbach Castle

A list was compiled of Gurlitt’s works found at Aschbach Castle. Of the 47 or so boxes, only 22 were opened and searched. Therein were found works by Courbet, Liebermann, Degas, Dix, Nolde, Picasso and Chagall. Not every work was itemised: the report listed some 170 works, many of which were referred to only as ‘German pictures’, and included ‘about 100 German prints’. The boxes were given numbers, with the opened boxes being only those with numbers 11 to 14, 18 to 21, 26 to 28, 30 and 34 to 43. Even the boxes left ‘unopened’ suggest tantalising contents–plastics by Rodin, more Liebermanns, a Mother and Child by Mary Cassat (!)–none of which would be referred to again in any of the Army reports. The inventory, in its inconclusive nature, is certainly lacking. Many art reproduction companies are adding those artworks to their collection as well, like the art reproduction company – Outpost-art.org, the modern wall art gallery, the Custom Oil Painting Gallery – dolphin gallery and also many more online art websites. According to Doug, the manager of Outpost Art, many customers are only interested in museum quality oil painting reproductions, that’s why they sold over 500 art reproductions of these artworks.

What is useful, however, is the inclusion of Gurlitt’s explanation as to the partial provenance of some of these works, many of which were purchased in Paris between 1941 and 1944.

Here are a few examples:

Courbet–bought from the Paris dealer Hugo Engel in 1942 for Ffr 150,000

Degas–bought from the Paris dealer Scholler in 1942 for Ffr 60,000

Degas–bought from the Paris dealer Barreiro in 1942 for Ffr 150,000

Guardi–bought at Rue de Seine in Paris in 1942 for Ffr 100,000

In addition, was noted a Picasso that had been ‘bought from the artist’ in Paris in 1942 for Ffr 60,000 and the Chagall that had apparently been an ‘old possession’ of his deceased sister, Cornelia Gurlitt, which he valued, almost inconceivably, at 300 R.M. These two works–and their true provenance–would continue to nag the Monuments Men for quite some time.

Much of the Gurlitt collection, including all the major inventoried items, was confiscated. The works were taken from Aschbach and brought to Wiesbaden, which was the MFAA Collecting Point reserved for works recuperated from German museum collections and private individuals. Did the Monuments Men take all of Gurlitt’s art to Wiesbaden? Perhaps not, but the noted works of interest listed in the 1945 inventory do appear in later MFAA lists of the Gurlitt collection. Works by the following artists had been inventoried in 1945 before being taken to Wiesbaden:

Adolphe-Felix Cals

Marc Chagall

Gustave Courbet

Two works by Edgar Degas

Otto Dix

Victor Dupre

Jean-Honore Fragonard

Frans Franken

Francesco Guardi

JC Keirinox

Max Liebermann

Ten or so works by Georges Michel

Emil Nolde

Jean-Baptiste Oudry

Jules Pascin

Pablo Picasso

Pierre-Paul Prudhon

Theodoor Rombouts

‘Roos’

Schenau

Paul Trouillebert

Felix Ziem

With these works were included paintings by Louis Gurlitt and a number of other unspecified German paintings and prints. They would all remain at Wiesbaden for another five years.

THE ROLE OF THE MONUMENTS MEN

During the post-war period, the MFAA’s mandate would be extended within the three western zones of Germany occupied by the Allied Armies. In the US Zone, in which the Wiesbaden Collecting Point was located, military laws were passed that affected the status of private movable property held within Germany. Military Government Law 52 required that German citizens had to report all property acquired in foreign countries during the War and submit it to the US Army. Then, in 1947, Military Government Law 59 provided for the restitution of items held by the Army to German citizens, an enormous and complicated procedure to be handled by the military, with assistance from the German courts.

The Monuments Men never expected to remain so long in Germany. Upon its establishment on 29th May 1944, barely a week before the Normandy Landings, the MFAA was first and foremost tasked with the protection of buildings of cultural and historical significance from the onslaught of the German and Allied Armies. One notable example can be found in the placing off limits of a list of cathedrals and other major cultural buildings by the Monuments Men in order to protect them from Allied bombing, ground attack and requisitioning for the billeting of troops. After the invasion, came the liberation of France and the slow move by the Allied Armies through the Low Countries and western Germany. The task of the Monuments Men grew: as the vast stashes of protected art and other cultural property began to be uncovered, most notably those in the cavernous salt mines of Germany and Austria, the role of the MFAA became primarily about the sequestration of movable works of art with a view to their restitution.

By the end of the 1940s, as the Western military occupation of Germany drew to a close, the MFAA was preparing to wind up its operations. What had begun in 1944 as a section of seventeen specialised officers had grown to include a total of 345 personnel, many of whom worked tireless days and nights uncovering and emptying the massive hidden art repositories at Siegen, Merkers and Altaussee, amidst the derelict and impoverished conditions characteristic of a warzone. George Stout in particular was reported to have worked an endless string of 18-hour days. Run out of the three Collecting Points of Munich, Offenbach and Wiesbaden, even the restitution of works had become a massive undertaking. During its existence, the MFAA was said to have returned some five million cultural objects.

Hildebrand Gurlitt’s Claims for the Return of the Collection

When Hildebrand Gurlitt came to Wiesbaden seeking the return of his languishing art collection, the MFAA was towards the end of its extended mandate. It was late 1950 and the Monuments Men at the Collecting Point, though treating his exculpatory assertions with a great deal of suspicion, probably understood that the world was moving on–the Federal Republic of Germany had been formed in May 1949–and that, with the occupation over, they too would soon be sent home.

After a number of attempts on his part, Gurlitt’s claims to recover his collection were finally met with receptiveness on the part of the MFAA by the end of 1950. On 12th and 13th December 1950, he visited the storage facility, accompanied by his friends Dr Erich Krause and the art historian Manfred Pahl-Rugenstein. The Monuments Man who wrote the report of the visit (possibly cultural property advisor Theodore Heinrich) was hardly won over by the former art dealer. The officer told Gurlitt he needed to prove his ownership of each picture he wanted returned. Gurlitt seemed unconcerned when asked in particular about the Picasso. There was a general impression that Gurlitt was bluffing his way through the visit. Nonetheless, he was handed the MFAA itemised list of the collection, with particular stress on the works by Picasso, Chagall, Degas, Michel, Rodin and Wiesgerber, and told he needed to demonstrate evidence of ownership.

He promptly returned the MFAA list with an explanation as to his acquisition of each of the works. For a fairly lengthy list of 114 paintings, 26 drawings and 29 decorative works and sculptures, his explanations are brief and rather perfunctory. He divides them into six categories. Some works, mainly African masks and Buddha sculptures, were from the estate of his sister (but notably not the Chagall), a Max Beckmann (In The Bar) was a gift from the artist, while a few pieces of Meissen had been given to him by an aristocratic friend. The vast majority of the collection, however, was claimed to have either originated from his parents’ house in Dresden or to be from his own personal collection. As clear and convincing evidence of his true ownership in the works, the explanation leaves much to be desired. Gurlitt instead repeats the assertion that he had always been an opponent of the Nazi regime. Here is how he described the main two categories of works, in translation:

The works which have a circle next to them are from my parents’
house in Dresden, Kaitzerstrasse 26. They had been in my father
Cornelius Gurlitt’s possession, who was a famous art historian
[…] before 1933. His books were publicly burned in 1933 in front
of the Dresden Technological Academy, whose rector he was numerous
times.

The works which have a cross next to them are part of my collection
of modern and expressionist art. It is widely known that I was
fired as Director of the Hamburg Art Association in 1933 due to
the fact that I supported the so called “degenerate art”, and even
after 1933 continued to do so against the ideology of the “Third
Reich”. Most of the works I bought from the artists directly, to
support them in their hardship. None of the works are from Jewish
owners or foreign countries.

His 13th December 1950 claim included supporting evidence from Dr Krause and Pahl-Rugenstein, each claiming they knew the works to have been legally acquired and held by Gurlitt. There were earlier supporting statements written in 1946 by the Chemnitz gallery director and a Hamburg attorney, each repeating Gurlitt’s allegedly anti-Nazi qualifications and his support for all forms of modern and abstract art in Germany, as well as from his halfJewish private secretary, whom he had tried to protect during the War.

Of particular note are his claims in reference to possibly the most valuable works from his collection in storage at Wiesbaden. In his proof of ownership of the Picasso (Woman’s Head) and the Chagall (Fabulous Scene), Gurlitt alleged that they had been received from a friend, the modern painter Karl Ballmer, who had lived in Hamburg like Gurlitt until 1933, but spent the war years in Switzerland.

In the end, as a result of the evidence submitted with his claim, the MFAA agreed to hand over nearly all of the works claimed by Gurlitt. On 15,h December 1945, 161 works, including the Meissen, the masks and the Buddhas, were handed over to Gurlitt. The return order was signed by Theodore Heinrich. One piece by Rodin (Atlas) had gone missing during its time at Wiesbaden and was presumed lost. Several other works by Liebermann had been returned by Rose Valland to their rightful owners in France, after she had herself examined the collection and interrogated Gurlitt. However, the MFAA was not convinced about the ownership of the works by Picasso and Chagall.

Those works had already been suspected of being looted from France. They were described in MFAA documents as ‘presumed French property’ and ‘pending investigation’. The MFAA officer during the December visit had been particularly concerned about the Picasso. Even more so, Gurlitt’s explanation that both works had been given to him by Ballmer directly contradicted his earlier statement to Lt Mackey in June 1945, included on the MFAA list of that date, that the Chagall had come through his late sister’s collection and that the Picasso had been bought from the artist in Paris. The contradiction is staggering: it is difficult to imagine how Gurlitt could have forgotten receiving such notable works from Ballmer two years earlier as a gift, and to imagine that both works had come instead from the artists themselves.

Nonetheless, after its refusal to return these two works, the MFAA received a letter from Karl Ballmer dated 30th December 1950, corroborating the claim that he had indeed given these works to Gurlitt. He specified that this had been done in Switzerland in 1943. This letter was considered sufficient proof of Gurlitt’s ownership for the MFAA to release these last items. This was then confirmed on 9th January 1951 in a letter from the Army signed by William Daniels, Chief, Office of Economic Affairs, Property Division. (32) Woman’s Head and Fabulous Scene were handed over to Gurlitt’s representative, Ernst Kroh, on 25th January 1951.

THE WORKS SEIZED FROM CORNELIUS GURLITT’S APARTMENT

A total of 458 works seized by the Augsburg prosecutor from Cornelius Gurlitt’s Munich apartment in 2012 have been uploaded to the Lost Art website. This published list consists of 404 drawings and watercolours, 53 oil paintings and one African mask. Of note is the striking overlap between the partial list of works uncovered and seized by the prosecutor and the works from the collection of Hildebrand Gurlitt that had been confiscated nearly 70 years earlier by the MFAA. From the works listed by Lost Art, upwards of twenty are works that had been confiscated by the MFAA, inventoried, then released to Hildebrand Gurlitt in December 1950 and January 1951. They include (or are likely to include) the following:

Marc Chagall, Allegorical Scene (Allegorische Szene), which is the work Fabulous Scene by the same artist noted by the MFAA in its 1950 inventory of the Gurlitt collection, Hildebrand having five years earlier described it as having been acquired from the artist through Gurlitt’s sister, but later claimed it as a gift from Ballmer;

Gustave Courbet, Coastal Landscape at Low Tide with Boats (Kustenlandschaft bei Ebb emit Booten), which could be Landscape with Rocks by the same artist in the 1950 MFAA inventory, possibly the work allegedly acquired by Hildebrand in Paris in 1942;

Edgar Degas, ‘Two half-length figures, nude’ (2 Halbfiguren, nackt), which is the same work noted as ‘Two Nudes’ in the 1950 MFAA inventory at number ‘1951/3′ (the number remains at present on the back of the drawing), Hildebrand having claimed five years earlier to have acquired it in Paris in 1942;

Edgar Degas, Female Nude Getting into a Bath (Frauenakt, in Badewanne steigend), which appears to be the work by the same artist Nude Woman Washing Herself in the 1950 MFAA inventory, Hildebrand having claimed five years earlier to have acquired it in Paris in 1942;

Otto Dix, Self-Portrait, which is the same Otto Dix self-portrait in the 1950 MFAA inventory at number ‘1932/9′ (the number remains at present on the back of the painting), Hildebrand having claimed five years earlier to have acquired it in Berlin in 1934 for the suspiciously low sum of 35 R.M.;

Conrad Felixmuller, ‘Couple in a Landscape’ (Paar in Landschaft), which is likely to be the work Loverscene by ‘Felix Muller’ noted in the 1950 MFAA inventory;

Frans Franken, Marriage at Cana (Hochzeit zu Kana), which is the same work in the 1950 MFAA inventory at number ‘1951/6′ (the number remains at present on the back of the painting);

Otto Griebel, The Veiled, which is the same work as Lady with a Veil by ‘Otto GrisseF (sic) noted in the 1950 MFAA inventory at number ‘1977/17′ (the number remains at present on the back of the painting);

Bernhard Kretschmer, Tram (Strassenbahn), which is the work Streetscene by the same artist in the 1950 MFAA inventory at number ‘1977/38′ (the number remains at present on the back of the painting);

Wilhelm Lachnit, Girl at the Table (Madchen am Tisch), which, judging by its actual subject matter, was Portrait of a Boy by the same artist noted in the 1950 MFAA inventory at number ‘1977/26′ (the number remains at present on the back of the painting);

Wilhelm Lachnit, Man and Woman at the Window (Mann und Frau am Fens ter), which is probably the work Man and Woman Looking out of Window by ‘ W.L.’ noted in the 1950 MFAA inventory at number ‘1977/26′ (the number remains at present on the back of the painting);

Max Liebermann, Riders on the Beach (Reiter am Strand), which appears to be the work 7vvo Riders on the Beach by the same artist noted in the 1950 MFAA inventory at number ‘1930’ (the number remains at present on the back of the painting);

Upwards of eight landscape paintings by Georges Michel;

Jean-Baptiste Oudry, Hunting Scene (Jagdstuck), which is the work Hunting Piece by the same artist in the 1950 MFAA inventory at number ‘2006/2′ (the number remains at present on the back of the painting), Hildebrand having five years earlier claimed to have acquired it in Paris in 1942;

Pierre-Paul Prudhon, The Expulsion from Paradise, which is the work by the same artist marked as Adam and Eve in the 1950 MFAA inventory at number ‘2006/3′ (the number remains at present on the back of the painting), Hildebrand having claimed five years earlier to have acquired it in Paris in 1942 for Ffr 30,000;

Batholomaeus Spranger (or style of), Neptune and Coenis, which is the work Nereus in the 1950 MFAA inventory at number ‘1951/7′ (the number remains at present on the back of the painting);

Kitagawa Utamaro, Three Asian Women Decorating a Wooden Frame, which is the same work as Utamaro’s Three Girls on a Small Bridge noted in the 1950 MFAA inventory at number ‘2052’ (the number remains at present on the back of the print);

Christoph Voll, Demolition-master Hantsch {Sprengmeister Hantsch), which is the work Portrait of a Man, Sprengmeister Hantsch by the same artist noted in the 1950 MFAA inventory;

Felix Ziem, Seascape {Marine), which is the work Marine by the same artist in the 1950 MFAA inventory, Hildebrand having claimed five years earlier to have acquired it in Amsterdam in 1944.

There are certain gaps. For instance, the famous Picasso which the Monuments Men had been so reluctant to return to Hildebrand Gurlitt (Woman’s Head) does not appear on the 458-item list from the Augsburg prosecutor. On the other hand, the striking Seated Woman by Matisse, which was seized from the Munich apartment, the image of which is included on the Lost Art site, appears never to have been in the records of the MFAA. The exception, though, may prove the rule. A number of other major works, including the Dix self-portrait, the Chagall oil painting, two works by Degas, and Liebermann’s Riders on the Beach, all had been in the possession of the MFAA between 1945 and 1950.

CLAIMS AGAINST CORNELIUS GURLITT

The names of some of the works returned by the Monuments Men have resurfaced as the subject of ownership claims against Cornelius Gurlitt. Since the publication of the recovery of the Munich art trove, the heirs of David Friedmann have come forth to claim the Liebermann work, Riders on the Beach. The Ismar Littmann heirs are seeking the return of two Dix works, including the self-portrait. And the heirs of Fritz Salo Glaser are seeking the return of thirteen other works. (51) For these claims, the limitation period under Germany’s Civil Code, the Burgerliches Gesetzbuch (BGB), expires 30 years following the initial dispossession, even if that dispossession occurred by theft.  The claims are therefore time barred. Gurlitt and his representatives, consisting of his legal guardian (temporarily managing the affairs of the elderly man) and his legal team, launched their own website in February 2014 (<www.gurlitt.info>), explaining that they have entered into negotiations with the Friedmann, Littmann and Glaser heirs, as well as those of Paris art dealer Paul Rosenberg. The site describes a willingness on the part of Gurlitt to come to ‘fair and equitable’ solutions. The site nonetheless clearly affirms Gurlitt’s legal stance, buttressed as it is by the expiration of the limitation period, stating that there are “no legal grounds that would compel Cornelius Gurlitt to return the so-called looted art”.

THE PROPOSED ‘LEX GURLITT’

However, the limitation issue does not end there. The Bavarian state government has proposed a new legislative exception to the 30-year rule that is in the process of being put before the two chambers of the federal parliament in Berlin. The legislation, known as the Kulturgut-Ruckgewahr-Gesetz, or Art Restitution Act, proposes to amend the BGB in order to allow restitution claims brought by the original owner of property against the current possessor if the possessor had not acquired it in good faith–irrespective of the limitation period. The proposed legislation, accompanied by an English translation, reads as follows:

Section 214 Effect of Limitation

(1)[…]

(2) In case of a claim for restitution pursuant to Sec. 985 or claims in support of a claim for restitution pursuant to Sec. 985, the limitation defence shall be excluded, if the owner, or his predecessor in title, or, in the case of indirect possession, the immediate possessor had lost the property and the possessor, or, in the event of indirect possession the beneficial possessor, did not act in good faith when he obtained possession.

The purpose of this amendment, known amongst certain commentators as ‘Lex Gurlitt’, is to allow the heirs of original owners of works of art lost or spoliated during the Nazi period to seek restitution through the courts despite the procedural bar that exists owing to the expiration of the limitation period. Gurlitt would not, unless he came into possession of the works in good faith, be able to avail himself of a limitation argument. This would require–and the burden of proof will be an important determination in such cases–an establishment either of his good or bad faith at the time he came into his inheritance at the death of his mother in 1967.

While the amendment was intended to enable cases involving the restitution of spoliated works to the heirs of Nazi victims, the course is not without obstacles. First, it is not directly stated under the new legislation which party will have the burden of proving the good or bad faith of the possessor. At least one legal commentator has stated that the burden would still be on the claimants to prove both that “title was not lost in any intervening transaction” and that the possessor “acted in bad faith at the time of obtaining possession”. If the claimant heirs are forced to make proof of Gurlitt’s bad faith, this could be a significant challenge to their legal case–and to their chances of success.

It is precisely to do with the question of good faith that the Monuments Men taking custody of part of the Gurlitt collection between 1945 and 1950 becomes important. The documented episode at first glance could be used to establish, if not the bad faith of Cornelius Gurlitt, at least the bad faith of his father. Most remarkable in the reports is the flimsy credibility of Hildebrand Gurlitt. This was noted in the MFAA report following Hildebrand’s visit to Wiesbaden on 12th and 13th December 1950 and his elusive manoeuvring in seeking the return of his collection. Two examples of his volte face are telling: regarding the Picasso, which in 1945 he had claimed was bought directly from the artist, and the Chagall, which in 1945 he claimed had been acquired by his sister from the artist; only to then allege that both works had been received as gifts in 1943 from the artist Ballmer in Switzerland. Not to mention the works he alleged in 1945 had been acquired from Paris dealers during the War only to then state in 1950 that they had come from his parents’ house in Dresden or had been bought from the artists themselves. Equally suspect is the timing of the affair. Did Hildebrand know that the tenure of the MFAA was about to end? If so, his visit to Wiesbaden could not have been better planned: as unwilling as the Monuments Men were to return the works to Hildebrand, they understood that they could not remain in possession forever.

Yet how does any deception on the part of Hildebrand Gurlitt affect the culpability of Cornelius? Is the son accountable for the sins of his father? In seeking to demonstrate his good faith at the time of his inheritance, Gurlitt could argue that he knew of the collection’s confiscation by the MFAA (he had been at Aschbach with his father when they were first seized) and that he was aware, as a teenager, of its impoundment and eventual return in 1950 and 1951. If the MFAA had been willing to return the collection, this could conceivably be an indication that the works had belonged to his father all along. Without being aware of his father’s duplicitousness, he could only assume that the MFAA had investigated the ownership issue and concluded as to the rightful owner. Besides, many of the works, upon their return, were exhibited throughout Germany in the 1950s, and indeed even in the United States. The general point regarding good faith is emphasised by Gurlitt’s lawyer, Hannes Hartung, who states on the Gurlitt website the following:

The law names numerous assumptions of good faith for a purchaser
that a claimant has to disprove. Since Cornelius Gurlitt assumed
and had to assume that the collection predominantly came from
former German Reich property that his father legally acquired, we
are convinced that he acted in good faith.

There may also be an additional argument on Gurlitt’s side regarding the MFAA confiscation. The collection was confiscated in 1945 and was kept in holding for over five years, without anyone coming forward to claim the works at issue, including notable pieces by such artists as Liebermann, Dix, as well as the Chagall and Picasso. How can a work be considered Tost’ if it is recovered by the military authorities and held at a Collecting Point for such a lengthy period of time? A number of MFAA officers examined the works. Even Rose Valland saw the collection and interrogated Hildebrand Gurlitt in relation to the many acquisitions he had made in Paris during the War. And yet, no true owners came forth–and none was found. If litigation does arise out of the Gurlitt affair, it may not be surprising if Gurlitt’s defence, at least in relation to those works taken by the MFAA, has the air of res judicata. This property had already been seized by the governing authorities, held, dealt with and returned–is that not enough to preclude any further action?

It is perhaps not surprising that the news in early 2014 of the Reichstag’s consideration of the BGB amendments was followed by the publicity grab of the Gurlitt website, proclaiming that, although the limitation period still applied to any claim which arose, the Gurlitt team was open to negotiations with claimants: if not on a legal ground, at least on a moral one. This may have been caused by considerable distress over the possible implications of the amendment. Could it effectively reactivate claims that had been extinguished more than a generation ago? Was Gurlitt now faced with the challenging hurdle of demonstrating in a court of law his good faith? Had the legislator opened the door to years of litigation?

Whatever the answers, the future of the Munich art trove is anything but certain. The matter cuts a wide swath through history–a history many thought safely behind them–and is affected by the horrors of Nazi spoliation, the appropriation of ‘degenerate’ art held by German museums, the onward sale of this to art dealers such as Hildebrand Gurlitt, the means by which art dealers making acquisitions for the Fuhrermuseum in Linz achieved their ends and the post-war consideration of all these issues by the courts and the legislative bodies of Germany. While many of the works seized by the Augsburg prosecutor may indeed be the property of Cornelius Gurlitt, what appears from the episode involving the MFAA confiscation is that Hildebrand himself had much to hide regarding the provenance of some of these works. It begs the question as to the true nature of their acquisition in Berlin, Paris and beyond. That being said, on the legal question of good faith, the apparent crux of any future restitution claim against Gurlitt, the effect of the confiscation and eventual return may yet play a role. Whatever its impact may be, it arises nearly 70 years after the MFAA was first constituted: such a long-lasting effect would have surprised the original Monuments Men–and no doubt their Hollywood imitators as well.

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