The issue of provenance in the art world in the context of Nazi restitution can be a thorny one. The Ninth Circuit recently issued a decision which may give actors in this marketplace more certainty. Von Saher v. Norton Simon Museum of Art at Pasadena concerns two 16th Century Dutch masterpieces titled “Adam” and “Eve” by Lucas Cranach the Elder.

The Cranachs were purchased by a Dutch art dealer named Jacques Goudstikker in 1931 and became his firm’s property, but, in May 1940, Goudstikker and his family fled the country ahead of the Nazi invasion. Hermann Göring acquired all of the firm’s works in a forced sale with the help of an accomplice.

Following the war, the Allies returned the works to the Dutch government, which in turn issued a series of decrees setting up a restitution process for those who lost property during the war. The deadline to submit a claim was 1951. With the advice of legal counsel, Goudstikker’s widow formally waived any claim to the Cranachs. The Dutch government ultimately sold the works in 1966 to an individual named Stroganoff to settle a restitution claim of his own. Stroganoff subsequently sold the piece to the Museum in 1971.

Von Saher, Goudstikker’s daughter-in-law attempted to recover the Cranachs and made applications to the Dutch government in 1999 and 2001. However, the Dutch government concluded that, under the rules of the restitution process, Goudstikker’s widow’s informed waiver validated the sale, and converted the works into enemy property. In turn, enemy property became property of the state, who could sell such property as a form of compensation for damages in the war.

Her remedies in Holland exhausted, Von Saher sued in California to recover the Cranachs. After years of litigation, the Ninth Circuit affirmed summary judgment primarily relying on the act of state doctrine, which is a rule of decision requiring that “the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.”

Evaluating the processes established and followed by the Dutch government, the Court concluded none of the potential exceptions applied, and it would be improper to declare invalid official acts of the Dutch government in its own territory. As a matter of law, the Dutch government had acquired good title to the Cranachs in 1951 and passed good title to Stroganoff in the 1966 sale.

While each restitution case requires fact-specific analysis, this case provides some helpful predictability. In the event provenance is potentially impacted by Nazi activity, United States Courts are likely to honor title decisions and restitution processes issued by other jurisdictions should such a ruling exist in the subject piece’s history.

Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto by email with any questions.