The Gurlitt ‘Collection’ and Nazi-Looted Art

Abstract

In February and March 2012, the Bavarian police seized 1280 artworks in the home of Cornelius Gurlitt (1932–2014) in Munich. Some of the paintings had knowingly been missing since 1945, others were not known, and at least 590 of them were suspected to have been looted by the Nazis. During the ensuing investigation into the case during Gurlitt’s lifetime and after the treasure had been inherited by the Museum of Fine Arts in Bern (Switzerland), only few paintings could be attributed to their rightful owners. While settlements over some of these paintings have so far been achieved, the question that has been prominently discussed by German and foreign media and lawyers alike was whether the state had a right to retain all 1280 paintings and whether the original owners could demand all or some of them to be returned under German law. Gurlitt had, under the German civil law, potentially acquired the rights of an owner as he was in possession of the paintings for more than ten years (§ 937 Abs. 2 German Civil Code). However, according to § 939 Abs. 2 in conjunction with § 206 German Civil Code, he could have lost ownership as the original owners were prevented to claim their rights within the relevant time frame by force majeure. The main problem revolves around whether the statute of limitations would preclude restitution. Generally, a claim has to be made within 30 years (§ 214 Abs. 1 BGB). International treaties and agreements are not applicable as they only regulate the relationship between states and claimants, but not between private parties, like Gurlitt. The 1998 Washington Agreement could have been applicable as the state had seized the paintings (legally or illegally, but most likely the latter in the present case) and was since 2012 in possession of them. By now, this problem has moved on together with the ownership to the Museum of Bern, making the 1998 Washington Agreement applicable. This chapter discusses the legal and ethical questions resulting from this high-profile case both under the applicable German law and in comparative international perspective. The practical implications for galleries and museums exhibiting stolen or looted works of art in Germany, Switzerland and internationally are also considered.