May 20, 2022

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

The works located near Emden in Switzerland were intended for the “Führermuseum” that Hitler planned for Linz in Austria, but never built.

During the Second World War, the paintings were hidden in an Austrian salt mine. Officers from the Allied Monuments, Fine Arts and Archives Unit – known as the Monuments Men – brought them back at the end of the war, and two of the Bellottos were returned to the German government. The third, “Marktplatz Pirna”, was mistakenly sent to the Netherlands.

In 2019, Germany returned these two works to the Emden heirs after the government’s advisory commission on Nazi looted art had determined that Emden was a victim of the “systematic destruction of people’s economic livelihoods by the Third Reich as an instrument of National Socialist racial policy” was.

But the Museum of Fine Arts, Houston, which finally came into possession of the third Bellotto, has been rejecting the claims of the Emden heirs since 2007. Its director Gary Tinterow argues that Emden sold the painting voluntarily and after provenance research and advice to lawyers, “we have found that we have a good title.”

The different ratings reflect the difficulty of reaching a consensus on what constitutes a “forced sale”. In 2009, the Terezin Declaration, an international agreement approved by the United States and 46 other nations, stated that the need to find “just and fair” solutions to looted art in museum collections extended to works sold under duress .

80 years later, understanding market conditions and prices can be a daunting task. In some cases, however, it was not difficult to define coercion. The Nazis simply forced some Jewish art dealers to auction their holdings at prices well below market prices, for example. Many Jewish collectors were also forced to sell paintings to finance their escape from Germany and to pay the “Reich Flight Tax,” a levy levied in 1931 to prevent capital from leaving the Weimar Republic that the Nazis used, to confiscate the property of Jews who escaped persecution.

Although Emden had left Germany years earlier, much of his assets remained there, and after the Nazis came to power, it became increasingly difficult for him to access them. His accounts were blocked and from 1937 his property and real estate were confiscated and he was facing financial ruin.

The sale of the three paintings for Hitler’s Museum in 1938 was initiated by the art dealer Anna Caspari, from whom Emden had bought the work in 1930. The purchase price was 60,000 francs. The Houston Museum research report describes this as “a reasonable and fair price.”

In the report of the German advisory commission, however, it is said that the sale was “not voluntary, but solely due to a worsening economic emergency”. The financial distress of Emden had been “deliberately exploited by potential buyers” in extensive sales negotiations, and Hitler’s law firm acquired a painting “in the style of Bellotto” – a less valuable imitation – at a higher price a short time later.

Tinterow argues that the Houston Museum, as a private American institution, is not bound by the same moral criteria as the German government. “European governments that have participated in the atrocities against the Jews have different standards,” he said in a telephone interview. The museum, on the other hand, is based on “centuries of property rights,” he said.

However, Robert M. Edsel, chairman of the Monuments Men Foundation, which supports the Emden heirs in their claim, said the museum’s response was legal and disregards the Washington Principles, an international agreement that is a precursor to the Terezin Declaration, which Fair play principles that aim to compensate those who wronged in war.

“Have the Washington principles disappeared from the minds of at least some American museums in 2021?” Asked Edsel.

David Rowland, a New York-based attorney who represents the heirs of Curt Glaser, a Jewish art critic and museum director who has fled Berlin, said he was finding European museums more receptive to restitution claims he made in relation to works the glazier. Family disputes were forcibly sold even in cases where the paintings were sold under identical circumstances.

“Some US museums use strictly legal approaches to claims,” ​​Rowland said. “In Europe there is more awareness of the moral responsibility of museums according to the non-binding Washington principles.”

Juan Carlos Emden, the grandson of Max Emden who lives in Chile, said that the family had been trying to recapture the “market square in Pirna” for about 15 years. He said that in November 2011, an attorney for the Houston Museum of Fine Arts wrote to a representative of the heirs threatening legal action if the family did not “stop immediately” contacting the museum and demanded that all correspondence be handled via the museum is sent lawyer.

“It was really scary the wording,” said Emden on the phone. “We didn’t get back in touch until the Monuments Men Foundation got involved.”

A spokeswoman for the museum said its staff 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 Emden version. After the war, the Monuments Men identified the work for the first time as the property of the Amsterdam art dealer Hugo Moser. (Moser had owned a painting of the same title, which was ascribed to Bellotto.) So “Marketplace at Pirna” was delivered to the Dutch government, which sent it to Moser in 1949. He sold it to Samuel Kress, a New York collector, who donated it to the Houston Museum in Turn in 1961.

However, the Monument People Foundation recently found new evidence that identifies the museum version of the “Pirna Market Square” as Emden’s version. The owner’s inventory number from the 18th century is on the front of the Houston factory.

The Foundation discovered the photo in the Witt library in London and also found a letter from 1949 in which an official from the Monuments, Fine Arts and Archives department found that the painting was mistakenly sent to the Netherlands, the Dutch Government asked to return the painting to Germany.

“The Monuments Men realized a mistake had been made, but then it was too late and his letter fell in the Netherlands,” said Edsel of the Monuments Men Foundation. “If this mistake had never occurred, the painting would have been returned to the federal government and restituted to the Emden heirs together with the other two in 2019.”

Tinterow argues that when the Dutch government, a sovereign state, incorrectly returned the painting to Moser and not Germany, however, Moser gave Moser a good title under United States law.

Part of Edsel’s problem with the Houston museum is that he feels it hasn’t done enough to trace the history of its Bellotto, or is now doing enough to recognize the new evidence suggesting that it does Factory was once owned by Emden.

Until a few weeks ago, both Emden and Moser were named as previous owners of the painting’s provenance on the museum’s website. It no longer contains Emden as the previous owner, but only the Dutch restitution to Moser.

Tinterow said that after the Monuments Men Foundation contacted him, he noticed that the museum’s online provenance information about the painting was incorrect because it merged the provenance of Emden and Moser’s Bellotto paintings. He changed it himself to “reduce it to only what we know is absolutely true,” he said.

“It was not intended to be fooled,” he said. “It was because of my frustration with a mutilated origin that had to be sorted out.”

Tinterow now admits that Houston’s version of “Marketplace at Pirna” very likely belonged to Emden and that he plans to update the provenance of the website as soon as the museum finishes its review.

However, he does not believe that Emden sold the work under duress.

The 1938 sale, he said, “was initiated and voluntarily completed by Dr. Emden as a Swiss citizen with the painting under his control in his villa in Switzerland.”