What constitutes art sold under duress? A dispute reignites the question

New York

IN 1938, Jewish department-store magnate Max Emden, who left Germany before the Nazis took power, sold three city views by 18th-century painter Bernardo Bellotto to an art buyer for Adolf Hitler.

The works, which were with Mr Emden in Switzerland, were destined for the "Fuhrermuseum" that Hitler planned for Linz, Austria, but never built.

During World War II, the paintings were hidden in an Austrian salt mine. Officers of the Allied Monuments, Fine Arts and Archives Unit - known as the Monuments Men - recovered them at the end of the war, and two of the Bellottos were returned to the German government. The third, Marketplace at Pirna, was mistakenly sent to the Netherlands.

In 2019, Germany returned those two works to Mr Emden's heirs after the government's Advisory Commission on Nazi-looted art determined that he was a victim of the "systematic destruction of people's economic livelihoods by the Third Reich as a tool of National Socialist racial policy".

But the Museum of Fine Arts, Houston, which ultimately came to possess the third Bellotto, has rejected the Emden heirs' claims since 2007. Its director Gary Tinterow argues that Mr Emden sold the painting voluntarily and, that after conducting provenance research and consulting lawyers, concluded that they had a good title.

A NEWSLETTER FOR YOU

Friday, 2 pm

Lifestyle

Our picks of the latest dining, travel and leisure options to treat yourself.

Sign Up

The different evaluations reflect the difficulty of building consensus on what constitutes a "sale under duress".

In 2009, the Terezin Declaration, an international agreement approved by the US and 46 other nations, specified that the need to find "just and fair" solutions to looted art in museum collections extended to works that had been sold under duress.

Understanding market conditions and prices 80 years after the fact can be a daunting exercise. But in some cases, defining duress has not been difficult.

The Nazis simply forced some Jewish art dealers to auction their inventories, for example, at prices well below market. Jewish collectors were also forced to sell paintings to fund their escape from Germany and pay the "Reich flight tax", a levy imposed in 1931 to prevent capital leaving the Weimar Republic.

Although Mr Emden had left Germany years earlier, a large part of his wealth remained there, and after the Nazis took power, it became increasingly difficult for him to access it. From 1937, his assets were seized and he faced financial ruin.

The 1938 sale of the three paintings for Hitler's museum was arranged by art dealer Anna Caspari, from whom Mr Emden had bought the work in 1930. The purchase price then was 60,000 Swiss francs. The research report by the Houston museum describes this as "an appropriate and fair price".

The German Advisory Commission's report, by contrast, said the sale "was not undertaken voluntarily but was entirely due to worsening economic hardship". It said Mr Emden's financial predicament was "deliberately exploited by potential buyers" during extended sales talks and noted that Hitler's chancellery bought a painting "in the style of Bellotto" - a less valuable imitation - for a higher price a short while later.

Mr Tinterow argues that as a private American institution, the Houston museum is not bound by the same moral criteria as the German government. "European governments which participated in the atrocities against the Jews have different standards," he said in an interview. The museum, by contrast, is guided by "centuries of property law", he said.

But Robert Edsel, the chairman of the Monuments Men Foundation, which is supporting the Emden heirs in their claim, said the museum's response is legalistic and disregards the Washington Principles, an international agreement that is a predecessor to the Terezin Declaration, which identifies principles of fair play designed to compensate those wronged in the war.

Juan Carlos Emden, a grandson of Max Emden, said the family has been trying to recover Marketplace at Pirna for about 15 years. He said that in November 2011, a lawyer for the Houston Museum of Fine Arts wrote to a representative of the heirs, threatening a suit if the family did not "immediately cease and desist" from contacting the museum and required all correspondence to be sent via its lawyer. "It was really scary wording," Mr Emden said. "We didn't get in touch again until the Monuments Men Foundation got involved."

A spokesperson for the museum said its staff members had received "inappropriate and threatening" communications from a representative of the heirs.

Until recently, the Houston museum had also questioned whether the painting in its collection was the version that belonged to Mr Emden.

After the war, the Monuments Men first identified the work as having belonged to Hugo Moser, an art dealer operating in Amsterdam, who had owned a painting with the same title, attributed to Bellotto.

So Marketplace at Pirna was delivered to the Dutch government, which sent it to Mr Moser in 1949. He sold it to Samuel Kress, a New York collector who donated it to the Houston museum in 1961.

But the Monuments Men Foundation recently unearthed new evidence that identifies the museum's version of Marketplace at Pirna as Mr Emden's. The front of the Houston work bears an inventory number, added by its 18th-century owner, that is also visible in a photograph of Mr Emden's painting taken by Ms Caspari in 1930, before she sold the painting to Mr Emden.

Mr Tinterow argues that when the Dutch government mistakenly returned the painting to Mr Moser rather than Germany, it nonetheless, under United States law, conferred good title to Mr Moser.

Part of Mr Edsel's issue with the Houston museum is that he does not think it did enough to track the history of its Bellotto back then; nor is it doing enough now to acknowledge the new evidence that suggests the work was once owned by Mr Emden.

Until recently, the museum's website mentioned both Mr Emden and Mr Moser as previous owners in the painting's provenance section. It no longer includes Mr Emden as a previous owner, just the Dutch restitution to Mr Moser.

Mr Tinterow said that after the Monuments Men Foundation contacted him, he became aware the museum's online provenance information about the painting was incorrect, because it conflated the provenance of both Mr Emden's and Mr Moser's Bellotto paintings. He amended it himself to reduce it to "only what we know to be absolutely true", he said.

"It was not meant to deceive," he said. "It was due to my frustration with a garbled provenance that needed to be sorted out."

Mr Tinterow now accepts that Houston's version of Marketplace at Pirna very likely belonged to Mr Emden and plans to update the Web site provenance soon. NYTIMES