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Cassirer v. Thyssen-Bornemisza Collection Foundation

On 21 April 2022, the U.S. Supreme Court issued a long-awaited decision in the ownership dispute between, on the one hand, the heirs of Lilly Cassirer, a victim of the Nazi regime, and on the other hand, the Spanish State, now in possession of the painting by Camille Pissarro representing Rue Saint-Honoré in the Afternoon, Effect of Rain.

Before the second world war, Lilly Cassirer inherited the Pissarro painting and hung it in her Berlin home. In 1939, she gave the painting to the Nazis in return for an exit visa. She later came to the United States with her grandson, Claude, the claimant in this case. The painting reappeared decades later in the Thyssen-Bornemisza Museum in Madrid. The Thyssen-Bornemisza collection exhibited in the museum now belongs to the Spanish state.

Lilly Cassirer inherited the Pissarro painting and hung it in her Berlin home

The law applicable to the question of who owns the painting today was critical because the US and Spain take a different approach to ownership of stolen property.  In Spain, the possessor in good faith acquires ownership of stolen goods relatively easily, subject to certain conditions.  In the US, the law tends to prefer the victim of theft.  Accordingly, it was in the Cassirer family’s interest that the law applicable to the issue of ownership should be the law of California rather than Spanish law.

When the Cassirer family discovered that the painting hung in the Thyssen-Bornemisza Museum, they claimed it. After the Thyssen-Bornemisza Collection Foundation refused to return it, Claude Cassirer filed suit in California against the Foundation. 

For the purpose of this blog, we shall summarise the numerous intermediate procedural steps that led to the decision of the Supreme Court.

The Courts determined in 2011 that the Thyssen-Bornemisza Collection Foundation was not immune from suit in the US Courts because the painting had been expropriated. That made it possible for the Cassirer family to sue the Foundation, an emanation of the Spanish State, in the US Courts.  The case then proceeded to trial on the merits. The Cassirer claimants argued that California law should apply to the question of whom as between the family and the Foundation should prevail, while the Foundation argued that Spanish law should apply. 

Before deciding which law applied to the ownership issue, the Courts were called upon to decide which conflict of laws rule should be used to decide what law substantively governed the ownership claim.  This is not unusual.  The first question is, what conflict of law rule should the court apply?  Once the court decides which conflict of law rule applies, the second question is, by application of that conflict of law rule, which is the law that the Courts must apply to the subject matter of the dispute?

The first judge decided that federal common law provided the conflict of laws rule that should be used to decide what law substantively governed the ownership dispute, and that under federal common law conflicts principles, Spanish law governed. That was affirmed on appeal.

Camille Pissarro, Rue Saint-Honoré in the Afternoon. Effect of Rain, 1897

The next question was whether the Foundation had actual knowledge that the painting was stolen when it purchased the painting.  If it did not have such knowledge, by application of Spanish law, ownership of the Painting would have vested in the Foundation.  The Courts eventually decided that the Foundation did not have knowledge that the painting was stolen, accordingly, they owned the painting as a matter of Spanish law and the Cassirer family’s claim was dismissed.  But that was not the end of this long-running saga.

The Cassirer claimants sought the Supreme Court review on the question of whether federal common law should govern the conflicts analysis, or whether the court should instead have applied California’s conflict of laws rules.

On the one hand, the Cassirer family argued for California choice-of-law principles. That choice of law rule points to Californian law being the substantive law the Court must apply to decide who owns the painting.   That, in turn, potentially paves the way to the return of the painting to the family, given that California law prevents the passage of ownership title even when the buyer, in this case the Foundation, acquired the property in good faith.

The Foundation, on the other hand, invoked the application of federal common law that points to Spanish law as the substantive law applicable to the dispute. If Spanish law applied, the Foundation if it acquired the painting in good faith would be treated as the owner of the painting.

Though initially the district court agreed with the Foundation and applied federal common law, the Supreme Court reversed that decision and accepted the family’s argument that California’s conflict of laws rules applies.  

This is an important victory for the Cassirer family because the Supreme Court has paved the way to the family being ultimately declared the owner of the painting.  Whilst they have won a battle, they have not won the war yet.  The family must now show that under California’s conflict of laws rules, California law is the substantive law the Courts must apply to the ownership dispute and that under California law, the family did not lose their ownership of the painting.  There is hope that the family will prevail.

It is somewhat shocking that the Cassirer family has had to do battle in the Courts for so long. In 1998, forty-four countries, including the Kingdom of Spain, agreed to several non-binding principles set out in the Washington Principles on Nazi-Confiscated Art.  The Washington Principles provide that: 

If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing that this may vary according to the facts and circumstances surrounding a particular case.”  

More than 10 years later, in 2009, forty-six countries, including Spain, reaffirmed their commitment to the Washington Principles by signing the Terezin Declaration. The Terezin Declaration reiterated that the Washington Principles 

were voluntary commitments that were based upon the moral principle that art and cultural property confiscated by the Nazis from Holocaust (Shoah) victims should be returned to them or their heirs, in a manner consistent with national laws and regulations as well as international obligations, in order to achieve just and fair solutions.” The Terezin Declaration “encourage[d] all parties including public and private institutions and individuals to apply [the Washington Principles].

The District Court that found in favour of the Foundation by application of Spanish law noted that the Foundation’s refusal to return the painting to the Cassirer family was inconsistent with Spain’s moral commitments under the Washington Principles and Terezin Declaration. However, the District Court found that it could not force the Foundation to comply with these non-binding moral principles. 

This case is a textbook example of hypocrisy; a country publicly sanctions moral principles yet when the opportunity of applying them presents itself, that country fails to abide by them, hiding behind the law instead of exploring a just and fair solution.

Laura Beatrice Zanella and Pierre Valentin