The Third Reich’s policy of seizing works of art to build the collection of a planned Fuhrermuseum to be constructed in Linz, Austria, or (for the modern works the regime deemed “entartete Kunst” (degenerate art)) is, by now, well-known. The Rape of Europa (Lynn H. Nicholas, 1994), The Lost Museum (Hector Feliciano, 1995), and The Monuments Men (Robert M. Edsel, 2009) have given detailed accounts of Nazi art looting for a popular audience.

Although the Nazis formal cultural plunder program carried out by the Einsatzstab Reichsleiter Rosenberg (the ERR), was not established until 1940, forced sales and outright theft of works began much earlier. “Forced sales” are transactions in which works were “purchased” from their owners for a fraction of their market price (or for no payment) in circumstances where the owners, frequently but not exclusively Jews, were desperate to secure exit visas or to raise funds for travel costs to escape Nazi-controlled territories. At times such forced sales were given the formal appearance of licit transactions. Before the war’s end, the Allies and the governments-in-exile issued the London Declaration, invalidating “any transfers of, or dealings with, property, rights and interests of any description whatsoever which are, or have been, situated in the territories which have come under the occupation or control” of the Axis power. The policy articulated in the London Declaration applied “whether such transfers of dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.”     

After the war, efforts to identify Nazi-looting works had mixed success. Formal restitution to original owners met with mixed success. The first U.S. decision awarding restitution to original owners of Nazi-looted art – Marc Chagall’s Le Paysan a L’echelle – was in 1966 (Menzel v. List, 267 N.Y.S.2d 804 (N.Y. 1966). The Menzel decision was followed by U.S. v. Portrait of Wally, A Painting by Egon Schiele, Defendant in Rem, 2002 No. 99 Civ. 9940, 2002 WL 55352 (S.D.N.Y. 2002); Vineberg v. Bissonnette, 529 F.Supp.2d 300 (D.R.I. 2007)(a decision based on a forced sale); and Republic of Austria v. Altmann, 541 U.S. 677 (U.S. 2007), among others. However, much of the art looted by the Nazis remains missing, and efforts by museums and governments have been criticized for lacking transparency. In an effort to address these issues, 44 countries met in 1998 at the Washington Conference on Holocaust-Era Assets, at which they endorsed the Washington Conference Principles on Nazi-Confiscated Art, calling for countries to establish central registries for works possibly looted during the Nazi period and to work with museums to engage in provenance research. The Washington Principles were followed by many other, generally non-binding, statements of principles, including the International Council of Museums Recommendations concerning the Return of Works of Art Belonging to Jewish Owners, Council of Europe Resolution 1205, and the Terezin Declaration. Although a general consensus appeared to have been reached that substantial efforts should be made to ensure that Nazi-looted art is returned to its original owners, progress has been slow. On Sept. 10, 2014, the Conference on Jewish Material Claims against Germany issued a report, >Holocaust-Era Looted Art: A Current World-Wide Overview, which provides a 50-country survey of restitution efforts. The report is highly critical of many countries, including Germany. The report notes that “15 years after the first international agreement regarding restitution of Nazi-era looted art, most countries have made little progress toward returning stolen cultural items to their rightful owners.”

Among the report’s criticisms of German restitution efforts are the delays and lack of transparency that have been observed in the handling of the now-notorious Gurlitt hoard. In November 2013, the German magazine Focus published an article revealing that German authorities had uncovered a trove of 1,400 artworks that had either been confiscated by the Nazis or had been transferred by their owners under duress in forced sales. The works had been discovered by government officials two years earlier in an apartment owned by Cornelius Gurlitt, the reclusive son of Nazi-era art dealer Hildebrand Gurlitt, and had not until then been made public. An additional group of 60 works were later found in another Gurlitt-owned house.

In March 2014, David Toren, a retired lawyer living in New York, filed a complaint against the Federal Republic of Germany and the Free State of Bavaria, seeking restitution of the painting, “Two Riders on the Beach,” by Max Liebermann,[1] which had belonged to his great-uncle, David Friedmann. This is the first U.S. action to be filed for restitution of works found in Gurlitt’s possession. As a child, Toren had seen the painting hanging in his great-uncle’s house in Breslau, Germany.

Toren was born in Germany, and left in August 1939, at the age of 14, when his parents sent him to Sweden aboard a Kinder Transport. Remaining behind, most of Toren’s family (including his parents) died at the hands of the Nazis. Friedmann died in 1942, and none of his immediately family survived the war.

In December 1939, a Nazi official in Breslau wrote to the Minister of Economics identifying artworks owned by Friedmann, including the Liebermann. The letter requested authorization “to secure such objects . . . in the interest of the Reich.” Shortly after the letter was written, an order was issued to seize paintings from Jewish homes in Breslau. The director of the Silesian Museum, who gave that order, was a supplier of works to Hildebrand Gurlitt, and the director offered the Liebermann to the art dealer. After the Gurlitt trove was discovered, Germany and Bavaria formed a task force to review provenance records and evaluate claims to the works. After Torens filed his complaint, that task force concluded that the Liebermann belongs to Torens, as heir to Friedmann, and that the painting should be returned to him. However, the painting has not yet been returned to him.

Unlike many Nazi-era looted art cases, the defendants in the Toren action (Germany and Bavaria) do not themselves claim ownership of the painting. Rather, they hold the Gurlitt artworks while their true owners are identified and claims are resolved. Toren’s complaint, then, is quite different from much of the restitution litigation that has preceded it. Toren identifies causes of action for (i) breach of a bailment contract, arguing that the defendants breached their bailment when they failed to turn over the painting to Toren after he made demand for it, (ii) conversion, arguing that the defendants are improperly exercising ownership rights over the painting, (iii) replevin, demanding return of the painting, (iv) constructive trust, asking the court to impose a constructive trust on the painting, for Toren’s benefit, (v) demanding an accounting of the conditions under which the painting is being held and stored, and (vi) declaratory relief, declaring Toren to be the owner of the Liebermann painting.

While the task force’s recommendation that the painting be returned to Toren suggests that the case will ultimately be resolved in his favor, after 70 years, the delay continues.