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CLINTON LIBRARY PHOTOCOPY
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J.XLTERNATIVE DISPUTE RESOLUTION' ,
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Recommendations for alternatives to litigation, e.,g., arbitration,l and
l1j1ed iation;
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,1. The AAMD in its 1998 guidelines: consider using mediation'
wherever reasonably practical; reconcile "the interests of individuals or
their heirs who were dispossessed ofworks~ of a~t with the complex legal
obligations and responsibilities of art museums to the public for whom
they hold works of art in trust."
2. The AAM in its "999 guidelirJes: "when appropriate and
reasonably practical, museums should seek methods other than litigation
(mediation) to resolve claims that an object was unlawfully appropriated
during the Nazi era without subsequent restitution.". '
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3. Hearing witnesses also recommended ,alternatives alth0l!gh
Kline suggested that without the pressure of litigation, there would be no
incentive to settle. 2
B., British, Spoliation·Advisory Panel'
The British have created a panel to help resolve claims made for
cultural objects that m~y have been looted, "the panel will consider
claims from anyone (or nisheirs) who lost possession of a cultural object
during the Nazi era (1933-1945) where the object is in the possession of
a UK museum or gallery and ~hall advise the claimant and the institution
, on what action would be appropriate to reso'lve th'e'claim. Panel
recommendations are notbinding but if the claiman~accepts the
recommendation, it is in full settlement of the. claim.
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1 In arbitration, the arbitrator is a neutral third party (or panel) who hears both sides and renders a
bihding decision. In mediation, the mediator helps disputing parties reach an agreement but cannot
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. irrtpose his decision on the parties.
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Ih the Chicago case, heirs of the Guttman family sued Searle for ownership of ~'Degas pastel lost during the war.
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sekrle, a trustee of the Chicago Art Institute, bought the work from a New York gallery which had acq~ired the work
. frdm Europe. Searle had made no title inquiry. After millions of dollars in litigation expenses, the pa'rties agreed on a
pr~-trialsettlement sending the Degas tothe Chicago Artlnstitute, half as a sale by the Guttman heirs to the museum
(th'e heirs got 50% of the appraised value) and the other half as donation from Searle . (who got a substantial tax write
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AL~ERNATIVE DISPUTE RESOLUTION page
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G. Other suggestions
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Established Arbitration Forum
It has been suggested that some forum other,than the,courts be'
established and operated with expert arbitrators under the guidelines of
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the American Arbitration Association. This forum would publish
"sanitized" decisions, deleting party names and o~her identifying facts to
preserve the q:mfidentiality of proceedings, while at the same time
creating a body oflaw on looted art and claims that would improve
system predictability and foster settlements.
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2. ,Costs
It has been suggested that the loser be required to pay costs as a
means of encouraging settlement and cutting down on frivolous claims.
3. Contract
It has been suggested that cO'ntracts for the purchase of art contain
a clause requiring ar?,i,t,ration and/or mediation in the event of a disputed
claim.
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ALTERNATIVE DISPUTE RESOLUJION page
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'A. WCC
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The common law and Section 1~20~ of th'e Ul1iform Commercial Code
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(UCC) require good faith in the performance and enforcement of every
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~ommercial c.ontract. Purchasers "in the ordinary course of business" must
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kxercise "honesty in fact," and a purchaser who is a merchant must, in addition,
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"reaso~able comn!erCial siandardsoffairde~ling in the trade." 1
B. Secrecy,
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I . The fate o~ stolen. Holocaust era art i~ obscur~d ~y ,the traditi~nal
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p,ractlCes of the international art trade that IS secretive by.nature, with many
~uyers preferring anonymity, and some art dealers going' to great lengths to
~onceal the true origin of a painting for commercial re~sons. Dealers rely on
,dromises of confidentiality but there is no legal basis f~r sl,.ich prornises. 2 '
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It has been suggested thafdealers, auction houses, e~c., be required to.
80st or publish some form of notice of transactions involving .Holocaust-era
JXssets3 that is readily accessible to the public 'at large.
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O. Warranty
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Under Sectibn2-.312 of the UCC , there is implied in all sales contraqs a
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~arranty
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by the seller that "(a) the title conveyed shall be good, and jts transfer
d9htful; and (b)'the goods shall be delivered free from alJysecurity interest or
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other lien or encumbrance of which the buyer at the time ofcontracting has no
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knowledge." This warranty may be ~aived only by "specific language or by'
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In Porter v. Wertz, 68 A.D. 2d 141,416 N.Y.DS.2d 254 (1979), aff'd on other grounds, 53 N.Y.2d 696, 421 N.E.2d
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500,439 N.Y.S. 2d 10'5 (1981), the court indicated that "reasonable coinmercial standards" would that require that an
art! dealer not demonstrate indifference to the quality'~f title.'
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See, e.g., DeWeerth v. Baldinger, 836 F.2d 103 (2nd Cir. 1987) in which DeWeerth.discovered from a Catalogue
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Raisonne that his Monet painting -. stolen during the war :- had been sold by Wildenstein in 1957 and that Wildenstein
ha1 exhibit~d it ip1970.ln 1,982, DeWeerth ,retained counsel in New York and requested Wilden stein to identify 'the
current owner. When Wildenstein refused, DeWeerth brought an action in New York Supreme'Court", In December 1982,
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the:court ruled in fa:v~r of DeWeerth, and Wildenste'in was' compelled to identify, Baldinger as the current owner.
DeWeeth then sued Baldinger for return of the painting.. '
3 If\as the dealers claim,they do not traffic in looted art, then they
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wo.n~t have t~
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publish anything.
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k~ow
'Jircumstances which give the buyer reason to
that the person seUing does,
hot claim title in himself or that he ,is purpo~ti'ng to sell only such right or title'
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as he or a third person may have."4
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lb. Due Diligence
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It has been suggested thatmi,nimum due dingen~e' in the art' market'
~ould require buyers and sellers to'check with the Art Loss Register,if not a
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€entralized database of Holocaust-era Asset claims. It has further been' ,
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suggested that 'any transaction involving a Holocaust-era Asset that has not
~een vetted in advance+by an appropriate database is voidable.,
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E. Standards
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There are no'formal standards for'dealers. It was suggested that the
"I~est contribution" th~Com~issi~n ~ould :make WOUld, ~e t,~ 'create some,'
permanent body (or give some eXlstmg body the authonty)to oversee the
Jstablishment of and compliance with standards for the art mar'ket just as they
exist in other markets that affect interstate commerce.
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It has been Suggested that dealers' archives be made,availableto the
J1>ublic when the gallery closes. ,The Matteoli Mission recommends access to the
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wrivate archives of the art market and
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, " ... that the federations and associations of art dealers,anq gallery
operators,in addition tothe Chambre nationale des coinmissjJire'~
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priseurs and the Compagnie des commissaires-priseursde Paris
must be contacted by the Mission in ord,er to obtain aCcess to the
, private archives of their members.
For the purposes'of identifying 'original owners, such a procedu're is'
indispensable in order to determine the' conditions- forced sale,
theft, volunt~ry salesjetc. - through which certain paintings came
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4tThere is also some question as to whether a disclaimer of title is effective because artwork might be conSidered a
u1nique article and therefore not subject to waivers und'er Section 3-312,
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into the possession of their members before these people then sold
them ...
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qLAIMS
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Necessary Elements
To prove a ,claim for the ,.return of Nazi-,Iooted art1it must be. shown ,that
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1. the claimant is' or is the legitimate heir oft~e true owner of the
property';
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2. the property had been unlawfully or:wrongfu!ly confiscated by' .
the Nazis or their collaborators; and
.3:. the property was not subsequently restituted to the true owner
or his heirs.
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Who has burden 'of proof?
1 . Ownership.
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·a. TheAAMD,and the'AAM guidelines stat~ that the'museum
should request evidence of ownership from'the clairi1antin o'rder to
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assist in determining 'the provenance of a work of art.,"
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b. Since there is no independent'criteria, no central registry
ofart th~t has be,~n'legislativ'ely recognized as definitive nor any
title recordation system a~in to real property and the usual indicia.
of ownership or title, suC;h ~s bills of sale, 'accession and/or
inventory records, artists' re~ords, and insurance ,records' may n'o
longer exist, how much proof is required to establish a claim?2 ..
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Museums have suggested ,that proof of owner'ship should be
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"Iegally sufficient."
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2.-. Unlawful or wrongful confiscation ...
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Although this' part of'the outline is presented in terms of looted art, consideratio~: must be given to victims who lost'
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other kinds of cultural assets.
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Inlthe North Carolina case, Dugot explained that the successful negotiations were possible because 'of th'e high quality
of the claimants' documentation.
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There are lists of looted art, e.g., the Linz collection lis'i,
Goering collection list, that will document th'at a work was
'unlawfully confiscated. It has been suggest~d 'that these lists be
merged and updated. OSI started to do this and their' list'has been
circulated to the art team.
'3. Not subsequently restituted.
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The NGA staff cited the exampl~ ofa workthat was 'clearly
looted from the Rothschilds and turned up after the war on the art
'market. Although provenance was incomplete, the NGA was able
, to show that si'nce the Rothschilds put it on the market, it must
, have been restituted.
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C. Processing claims
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1. Holo(:aust Claims Processing OffiCe
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"Anyone with reason to believe that art belonging to them or
relative was lost, looted or stolen between January 1,1933 and May 9,
1945 may submit -a claim With the HolocaustClaims Processing Office. ,
, Informatiorfprovided on the claim form will be used as a starting 'point
for archival research. Moreover, it
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be compared with
provenanc~
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insurance company and museum 'records, Nazi confiscation lists, auction.
catalogues, al'ld other resources' in an,effort to locate the missing work of
art and aid in its recovery." ,Claim form attached,
2. The Commission for Art Recov'ery [CAR]
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CAR collects information from claimants and compares it to
information gathered by its researchers from insurance policies,"
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inventories, exhibition catalogues and other documentary sources. When
a claimed work matches a looted work, information regarding the status
and current whereabouts ofthe work is turned over to the claimant so
that he or she may proceed in the pursuit of his or her' claim.' Claim
form attached.
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D. Rights of Claimants.
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CL~IMSpage
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�1. Willi Korte.
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Considerable money was spent on bank account claims but not for
. art committee claimants left to their own devices. It is not enough to just
put stuff up on the web and hope th~ claimants will see it. They don't
have enough information to make a claim.
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2. Thomas Kline .
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. Holocaust art theft claimants need a more receptive atmospher~
and financial assistance to pursue claims
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GEFINING HOLOCAUST-ERA ASSETS·
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,For purposes of drafting proposed recommendations on art, it will be
~ecessa~y to first d~fine the universe of obje~ts with which we 'are concerned
a;nd make it clear that Commission recommendations are 'intended to app,ly to
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those assets' and only those ,assets.l
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.Several descriptions of Holot~ust-era asset~ ha~,e' been'used:
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A. Public Law 105-186 (c;reating the Commission) refers to "assets'
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'dbtained froll'! victims of the Holocaust by'" or "left unclaimed as a result of
the: Nazi government of
Jctions taken by:'; o'n 'behalf of, or' under authority of
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'(2) any government in any area occupied by the military forces of the
Nazi government of Germany; (3) any government established with the"
a!ssistance or ~ooperation of the Nazi government of Ge'rmany cooperation' of
the Nazi government of Germany; and (4) any government which was an ally. of '
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the Nazi government of Germany.
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Museu~ ~irectors,(AAMD) refers to work
"~elated to an illegal confiscation during the Nazi/World War'lI era:'"
.C. The Washin'gton Conference Principles refer to art confiscated
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Nazi's from pre-war owners.
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D. The AAMguidelines referto "objects that may have been u~lIawfully
appropriated during the Nazi era (1933- f945) as a result of actions in
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fl!Jrtherance of the Holocaust or taken by the Nazis or their collaborators."
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E.. Museums h~lVe variously defined their criteria for id~ntifying
Holocaust assets. For example:
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1. The Tate Muse'um, in theory, would examine, "every work in the'
, Collection which was acquired after 1932, made before 1945 and was or
could have been in areas of Europe occupied by the
and 1945."
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N~zis
between 1933
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~or example, museums need provide pr?venance information only for Holocaust era paintings. What they disclose
about the rest of theircollections is not the responsibility of the Commission. '
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�2. The Metropolitan Museum released "a listof [393] European
paintings with, incomp,lete provenance for the Nazi/World War II era" with
the explanation that "[I]nclusion, on this list indicat,es that more
information is required to complete our knowledge ofthe ownership of
.these works during the Nazi/.Worid War II era," De Montebello testified
that the Methad 2700 European paintings,in its collection,
3. The Museum of Modern Art owns approximately 900 paintings
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created before 1945 and acql;Jired after 1933. Of this number, about 500,
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were or could have been in Europe during the 1930s and 1940s. The,
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Museum lists only those where provel1an(:e records are incomplete.
4. The Chicago Art Institute re'leased a list of painting~ and
sculpture in t'he 'collection' for which links in the chain of ownership for
the years 1933~ 1945 are stiU unclear or not yet fully documented.
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5. The So'ston Museum ofFine Arts is looking at 200+ (out of 700)
European paintings created before i 945 that had either very little detail
in their history of ownership, or .ifsome details were known, their
historieswere' sketchyor incomplete for the years 1933-1945. In a
h"andfulof these curators and res'earchersfound connections with the
names of individuals who have been implicated in the"improper trading or
even looting o(works'of art during the Holocaust / World War lI,era or
had apparently been traded i'n Germany, Austria, or France during the
period of Nazi rule,comirig onto' the art market du~ingthe' peri~d 1933'
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G. PROPOSED'DEFINITION:
Every woik ofait that was made before 1945 and changed hands alter
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m~litary forces of the Nazi government ofGermany; in any country established'
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w~th th'e assistance or cooperation 'of the Nazi government ofGermany; or In
" a~y countrvthatwas an ally of the Nazi government of Germany from 1933
th~ough 1945. "
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H. Using the definition:·
1'. Once.a definition·is adopted, it will be used in
throu~hout
o~IY that sense
the recommendations.
, ·2. This is not the same as a "red flag" exercise. The definition
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Holocaust-era Asset is meant to bei~clusive.bf every work meeting an
objective criteria and not dependent on anyone's judgment as to the
validity..of ,provenance OJ the· meaning of a gap in· provenance ·dr:the
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effect of seemingly voluntary transfer (See London Declaration).
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For example, if the'Museum ofModerri Art has 500 paintings'
created before 1945 and acqu/(ed after 1933 .that were or could have
been in Europe dpring the 19305 and1940s; ajioftherri would be
considered Holocaust-era Assets,, notjust the 15·for which provenance is
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DE,FINING HOLOCAUST-ERA ASSETS page
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FrEDERAL FUNDING
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The most obvious and most' of~en articulated ,r~commendati()ns involved
federal funding, specifically for research,databases, and national archives.
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A. Research.
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It has been suggested that funding would bein the' form of grants to
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rhuseums (and other relevant institutions) to
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purs~e Holocaust' era .research; ,
specifically to hire new staff with the'skills nec~ssaryto do the work and/or to
Jrovide training programs for existing staff to do t'he work.
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It has been suggested that'suchgrants be administered by an
existing ag~ncy, e.g., the Institute for Museum and Library Services
(lMLS), which al'ready has the experience and ad~inistrative: structure to
define the criteria, select the grantees, manage' the funds and develop the
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standards on which performance can· be evaluated.,'
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2. There are no r:eliable estimates for the cost of these research
grants. The IMLS and the AAMD are attempting to determine the amount,
to request.
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3.' Sources:
a. ,It has been suggested that the $ 5 'million authorized but
not appropriated by the lOSth Congress in the HolocaustVictims
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Redress Act [P.L. 1OS-lS8]"for archival research ,and translation
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servi~es to assist in the restitution of assets .looted or extorted
from yictims.:,. 'and such othe'ractlvfties ... " maybe available.
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b. The CommissiOn may also want to look at another bill in
the 1OSth Congress H.R. 4138 [diedincommittee] which
authorized g~ants to nqualifi~d research organizations" i.e., those
found by the Attorney Gene'ral 'to be qualified by, reason of ,
dem'onstrable ability toide'ntifyarid' relocate st~len art\york."
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~. Computerized, centralized, user-friend,ly as'setqatabase 1.,
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I Two kinds of data bases were discussed: asset databases and claimant databases, Best to consideneparately.,
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1. Which Holocaust-era assets?
a. All Holocaust-era assets (as defined by'the Commission) held in
the United States, i~:tne museum collections and, hopefully, those in the.
private art market - dealers and auction houses.
b. Holocaust-'era assets with gaps 'in provenance.
c. Holocaust-era assets with suspicious gaps in provenance (red"
flag)
d. Some combination of the above.
2. Query: If a muse.um with Holocaust-'-era assets contributed to the
central data base, would it still have to maintain its own data base?'
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3. Compliance would be guaranteed by
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. (a) making it a condition for federal funds?
(b) expulsion from AAM ?
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4. Standards. The centralized asset database must be access.ible to
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anyone with a computer, must include pictures, and must be searchable by
t:!ha'in of ownership (provenance) as well as by artist, etc. . ,'. . . '
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5. The centralized asset database would presumably
ina:format which
cbuld be merged into an international Holocaust-era database:
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6. It has been suggested that rather than create a new. government
, a,gency to manage the 'centralized asset data base,
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a. fu nds cou 111 be allocated to the National Gall'e iy of Art to copy
". its Holocaust era assets data out of its comprehensive data base
and add data from other mqseums to make a new, fully-~ccessible,
solel'y Holocaust-era Assets c'entral database; or,
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b. as another option, it appears that the Art MuseiJm Image
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Consortium (AMICO) is proposing to establish
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database for its museum members.
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a H'olocaust-related
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C. Computerized central claimant database
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A claimant database is not the same as an asset database'. Rather, it
~ould be a co~prehensive listing of Holocaust-era claims, created and
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'~aintained
'in cooperation with existing
databases,'e~g.,'Commissidn'for Art
Recovery [CARP the Art Loss Register [ALR]3and theHolo~'alJst Claims
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P1rocessin g Office [HCPO]4.
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1. It has been suggested that rather than create a new agency to
manage claimant database, funds be allocated to the Holocaust Museums
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which already conducts research relevant to Holocaust victims.
2. ,It has also been suggested that the operator ofa claimant
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database also prqvide claimants or potential claimants with the qther
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services, e.g., legal, tr'anslating, negotiating, that would be needed to
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enable claimants, to pursue th~'ir claims. 6
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'3. It has been suggested that checking with ,a'claimant database
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would be minimal due diligence ,for any purchaser or dealer inHolocaust
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era art.,
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D,. National Archives
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- The Commission for Art Recovery [CAR] collects information from claimants and compares it to information gathered
by: its researchers from insurance policies, inventories, exhibition cat'alogues and ~ther documentary sources.' When a "
claimed work matches a looted work. information regarding the status and current whereabouts of the work is turned
ov¢r to,the claimant so that he or she may proceed in th~ pursuitof his or her claim.
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3ljhe Art Loss Register (ALR) is a perman~nt coinput~r image database of stolen and missing works of art and antiques
containing almost 100,000 items reported as stolen or missing' aQd since,beginning operations in 1991. In addition to
re~istration of losses (no charge), the ALRoffers a Search Service for private clierits to determine whether a specific
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itef-n has been reported as stolen or missing.
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4 ';rThe Holocaust Claims Processing Offj'ce will accept claims and provide
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assista~ce in the preparation of the claim
form. Information provided on the claim form will be entered into a computer database and compared with provenance
data, insurance company and muse'um records, Nazi confiscation lists, auction catalogues,iand other resources in an
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effort to locate stolen art and aid in its recovery. Whenever possible and appropriate, we will forward information about,
missing items to other organizations that can be helpful in the recovery of stolen art .... It is important to note that the
su~mission of a claim does not in any way guarantee the return of any art objecLWe believe, how'ever, that through the
talent and expertise of our staff, under the auspices of the New York State Banking Department, the burdens and costs
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encountered by claimants proceeding on their own will be alleviated."
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Other suggestions for housing this data base include the FBI, the Library 'of Congress and the Smithsonian Institution.
H~aring witnesses,
especially on 'the Judiacapanel,
claims,
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FEDERAL FUNDING page
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suggest~d that victims/claim~nts needed help in documenti~g
�Sin'ce most of the. importantdoc~rnents necessary to do Holocaust-era
t1ssets research are at the National Archives (NARA), there is general agreement
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t~at these documents l11~st be made readily accessible to anyone who wants to
u'se them for research. Various standards of "readily accessible" have been
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suggested:
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1. Holocaust,...era Assets at NARA should be digitized and
searchable by computer.
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2. Or,·.in the words of De Montebello, federal funding is needed "to
create an index, or concordance, of the voluminous' Holocaust era records·
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on deposit at the National Archive."
'. 3. Or, as urged by the AAMD, federal funding is needed to "assist
[NARA] to create a more efficient catalogue and cross-referencing system
to aid researchers."
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HEIRLESS ASSETS
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In the event a unique work of artis determined to have been stolertbut no
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c;laimant comes forward, several options have been propos'~d:
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Find the heir.
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Establish an affirmative duty on the part of a museum or other institution
Holding stolen art (of a certain value 7) to make an effort to find the heirs either
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or its own or through some art loss agency.
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Successor organizations.
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Consistent with the successor organization approach adopted at the end
of WWII, designate some agency or government as proxy heir for those who can'
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no longer make a claim
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Send to looted, heirless art to Israel for the benefit of the Jewish people.
The Matteoli Mission recommends that as a visible testimony of the
s!poliation, a few significant works· be exhibited in the Jerusalem Museum of
Israel, with information as to their origins and reasons why they are being
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e'xhibited. But see E below.
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D. Transfer the a'rt toa museum or other institution established for the'
Jurpose of exhibiting looted Holocau·st-era,~rt.
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[." , De Montebello sugges,t,s that there would not be
make a museum or even a show.
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e~ough
looted art to
Retain the art and exhibit it with an appropriate· description of its' history. ,"
1.lt was suggested by the museum community that the museum,
should, retain such work but acknowledge its history 'on aiL relevant labels
an<:J inpublications.
2. The Matteoli Mission recommends leaving "despoiled works and
objets d'art, or those of uncertain origin" where they are located at the
present time provided that the three following actions are systematically
put into place:
• widest possible dissemination, in the museums hosting works
acquired through spoliation, of the catalogue of despoiled works;
HEIRLESSASSETS page
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• in the immediate vicinity of each work obtaine'd through,
spoliation or of uncertain origin, installation of a regularly updated
paRel indicating the available information as to the origin of the
"York in question; and
, • setting up, in each of these museums, an Internet site open to
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'the.public and presenting the works obtained through spoliation or
of uncertain origins, and constant loop projection of these·works.
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~EIRLESS ASSETS
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i .It has been sugge.sted ~~at the ,immunity from seizure laws bemade, mo.re
·~accessible." The better the protectio.n against seizure, the mo.re likely that art
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clan be bo.rro.wed fo.r an exhibit ,and the mo.re art is'displayed, the mo.re likely
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s~o.l~nart
can be id,entified and ,returned. On the o.ther hand, immunity
pro.tects tho.sewho. 'o.wn stolen art.
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A. ,Exisiting Federal Law
the Im~unity.From Seizure Act (I FSA) g~ants the Po.wer ,~f immunizing ,
fo.reign Io.aned wo.rks o.f art to. the President 0.1" his designee,(Carterdesignated '
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the United States Info.rmation Agency (USIA»." Upo.n an" applicatio.n fo.r federal
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protectio.n, and provided the wo.rks are fo.und to. be o.f such cultural significance
~s to. be in the natio.nal interest, a no.te to this effect is published in the Federai
Register and the bo.rrowed wo.rks are immune from civil o.r criminal seizure in
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t,he United States o.r its territo.ries.
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1. The USIA applicatio.n requires the borro.wer to. certify'that
... it has ,undertaken reC),so.nable professio.nal inquiry - including
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independent, multi-so.urce research - into. the provenance o.f the
o.bjects proPo.sed fo.'r determinatio.ns'o.f cultural significance. The
,applicant certifies further that it do.es no.tkno.w o.r have reaso.n to. ,
kno.w o.f any circumstances \Vith respect to. any 'o.f the o.bjects that
Wo.uld indicate the Po.tential 'fo.r c;o.mpeting claims o.f o.wnership
except as described belo.w. Fo.r the o.bjects fo.r which
circumstances exist that Wo.uld indicate the'Po.tential for co.mpeting
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claims o.(o.wnership, the.,following ,is a description'~,f si~ch "
circumstances and the likeliho.o.d any such,claim Wo.uld succeed
2. The museum community Wo.uld like to. revise this language as
follows: '
The applicant'has exercised reaso.nable care in, undertaking,
pro.fessio.nalinquiry ~'includil1g i'ndependent,multiso.urce research,
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IMMUNITY FROM SEIZURE page,
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,,' \lVhere applicable- i~to t~~' p'rc>venance'of the ~bjects proposed for. '
determ,inatio~ of culturcH significanceand,"nat'ional 'inte~~st ... l' '
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B., Existing State,Lavy~ ,
'1. NewYo'rk ,,':
In the wake 'of the MoMA, / Schiele case, the New York Arts' and,
Cultural Affairs Law (ACAL) was justamended 2 to pro~ibit the civil .seizure
of any wqrk of .fine 'art while en route 'to: or frorn,ot'"whlle on exhibiti~n'
by a nbhprof,it exhibitor. ,Although IFSA and the ACALare,~imilar in '
many respect:s,' th~~e,are fundamental diff~repces.Whe"re IFSA requires ',:
an application. . ,
process, AC:AL is aut~·matiC. ACALdoes' not require that ' " ' '
the artwork be culturally important or in the natio'mll,interest, only'that it ,
,be borrowed from an, out of state source and~~mporarily e~hibited'i.n' "
New York.for nonprofitpurpo~es .. ,
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,2. No other state provides. protective~itnmunity,ior
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borrowed~rt.
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1 This revised language if from 'AAMD,' As B9ston Mus~~m of Fine Ar.ts Director.Rogers"explained; if it is necessary to'
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allege that there are no possible claimants, then immunity would be unnecessary,
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2 he ACAL was ~mended to prohibit civil seiz~r~sbut not criniin~1 seizures "after the state court' 'overturned the
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criminal seizure of two Shiele paintings b,orrowed by MoMA from Austria:!'
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IJMU~ITYFROM,S~IZURE page 2",,'
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LEGAL ISSUES
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Certain recommendations will have to take. into account the legal context
g:overning the restitution of Holocaust-era Assets .
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Title
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Under common law, a thiefcannot convey good title to anyone, even a
good faith purchaser for value. Good title means "title which is free of defects
alnd litigation and hence may be tr~nsferred to another."
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B. Common Law vs.
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Ci~il
Law..
Since a t.hief cannot convey.good title in common law jurisdicti'ons (US), a
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s:ubsequent good faith purchaser of stolen art can never acquire good title.. I.n
~ivil law jurisdictions (Europe), a good~faith purchaser may acquire good title to
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property after a period ofyears. 1
1. Choice of Law.. Under theinternationCiI legal principle lex situs,
the law of the' nation where the art is located at the time of transfer .is the
governing law for any legal actions concerning the art.
2. Once stole"n property is transferred' in a Civil lawju-risdiction, is
it purged of its tainted title so that a good faith purchaser in the US can
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get good
titl~? 2
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(. Replevin
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A person may bring an actionin replevin to recover stolen goods by
alleging (1) his title or right the property;(2) that the. property is unlawfully
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detained;and (3) that the
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wrongfully holds possession.
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I Under .French, Belgian and Dutch law, the period is three years. Under Italian law, a good .faith. purchaer
ac~u'ires title
immediately. Under German law, a good faith purchaser acquires title after ten' years
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lin Autocephelous Greek-Orthodox Church v. Goldberg & Feldman Fine Arts Inc., 917 F:2d 278 (7th Cir. 1990) the
plaintiff sued for the return of allegedly stolen mosaics purchased by defendant. The court analyzed the case using
60th United· States common law, and Swiss .civil law principles. If the defe~dant purchased the mosaics in good faith,
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. the defendant could be awarded good title. However, the court held that since the defendant dealer did not exercise
~eas6nable diligence in researching its origin, the .dealer did not purchase. the mosaics in good faith ..
~EGAL ISSUES page 1.
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1. The defendant has the burden of proving that the goods are not
stolen. Guggenheim v. Lubell, 569 N.E.2d 426 (N·.Y. Ct. ADD. 1991 ).
2. If an action in replevin is time-barred ,under a statute of
limitat'ions (generally two to six years), the p'ossessor of the stolen
property ~as 'effectiyely acquired title.
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D. Statute of Limitations
I~gal
A statute of limitations limits the period in which a plaintiff retains the . .
right to assert a valid claim in: cou'rt.:Jt has beensugges~ed that' 'because
of the unique circumstances ofthe.Holocaust, statutes of limitations be waived,;
or modified for Holocaust claims.
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1. Under' the Discovery Rule, the'.' statute. '
begins to . run when the
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. original owner (as one seeking recovery under:the rule), using due
diligence, discovers or should have discovered t'he whereabo~ts'o{the
st'olt~n property. The burden, therefore, is on th~ tru~ owner of the '
property to discover the location of the property instead of on the
possessor to demonstrat.e good faith in his acquisition.
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.2. Under New York's Demand and Refusal Rule, the statute does
not begin to run until t,he original own~r demands that the possessor
return of the stolen property and the possessor refuses. The '''demand
and refusal:' rul,e prevents the statute from runni~g in' favor of a good
faith' purchase'r.
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3. Matteoli Mission.
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"In cases where property, the existence of whith. in 1940 is
established, has been the subject of spoliation but has not yet been.
returned or compe'nsated, compensation is.a right irrespective of any
statutes of limitations which may be in effect".
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, D I Due Diligence.
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LEGAL ISSUES page 2
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There is no standard for due diligence foreitherth'e 9riginal owner or the
possessor.
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1 , 1 . Failure,to exercise due diligence cbuld bar a'victim's claim.3
2: It has been suggested that registering a claim witha claimants'
database would be sufficient due diligence for a 'claimant. It has also
been suggested that failure tO,do so within some fixed time after the
theft would bar the claim.
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3., From the possessor's side,"it has been suggested that checking
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with the ALR or some, other claims' database before. .
acquiring art would
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be suffident due diligence.' Museums' and dealers and auction houses
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like to say that they check incoming works with the ALR.
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In! DeWeerth v. Ba;dinger.
83~ F,2d 103 (2nd Cir.1987) the court held that a claim by a wealthyGerman art collector
, who lost her possessions during the' war, was , time-barred because she had ,not exercised enough due diligence in
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searching for the painting, ",But see, DeWeerth v. Baldinger, 804 F.Supp, 539(1992) where the court held that New York
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law does not require due diligence of owner's of stolen art for purposes of the statute of limitations, ~n a claim for
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replevin.
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'()LlCY~OR
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VICTIM RESTITUTION
International Policy
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1. Hague Convention. "
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Hag~eCOnven~i"~~ ~~preSSIY st~t~s
lI~rivat~'
The ',1907
that
property
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will ,not pe confiscated. " See Menze(v. List, 267 N.Y.S: 2d,'a04;,801."
:,.(1966)' ('IThe 'piU~g~ so 'rampant during Nazi occupation was specifically, '
,'heldio be' in violation of article
56ofth~ HagueCo~vention
of 1907.").
a., EnfQfceme,nt? "':
b.
Penali~es?
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2. London Declaration
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On Janii'a'ry S,' 1943, the Alli~s issued a '''political declara~iqn of.
intent" co'ntaining 'a Warl1lng, partfculc:ulY,to neutrals,.that the Allies:
, intende'(j to' 90 their u'tm~st to "defeat the methodsof.disposse~sio,n';,
practiCed by the enemy
further, that they re~e'rV~d the rightt~'· '
decl~r.~any such ,tr~nsfe:rs of"property 'ilw~lid;:,induding , ' "
t,hose
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"transactions apparently legal in fO,rrh,"even when purpo(~ed~o be
voluntarily: effected.':l--' ' ,
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The London o'etianition subsequentlyJormed the basis on which
po'st-,wac r~sti~lJtion policy. would come to'rest.. Fqr.e'xample, 'in 1946, a':,
State' ,Department official explained that "the qlJes,titjfl of restitution of' .
prope~ty' rert1,p,,~d by th~,'(:;er,mans from' Allied"c~uniri'es mastp~",
examined 'in all cases, in'.Iightofthe :'[Londonl bedaration)"
" . It' ha.'s
be~n~uggest~dthat,"?inC~ t'h~ principles of the Lond~n'
. DeClaration had. enjoyed
sub~tantial acteptan~~ after:Wo.rldWar 112; they
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j'From the beginning, the question of restituti,on for heirless Jewis~ cultured,property wa~ caught up in the politi~S and
diplomacy of the Grand Alliance, From the London Declaration of January 5, 1943, onward, the Allies pledged to undo
"Nkz'i looting by whatever means necessary,and t~ restitute looted property," Michael. Kurtz, LootedAit: flesolving A,: '
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Dilemma: The Inheritance ofJewish Property; 20Cardbzo L. Rev.,,625 (1998)..
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obligated to pay compensation to persons in Switzerland who were required to return cultural objects to the original
o~n~rs even where, under Swi~S civil law, good title had b,een conv~Y~d.
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POLICY FOR VICTIM RESTITUTION page
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might be 'applied
.' thefts.
t~ the resolution of claims now arisi~g out World War II
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3. UNIDROIT Convention on Stolen and Illegally Exported 'CulturaJ
Objects.
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Although, a central tenet of the Convention is ttJat~he "pos~essor of
a cultural.objectwhich has been stolen shall return it;" Article 3(1).
UNIDRQIT does not a.pply retroactively and, for hldivid'ual Jewish victims,
· the time to recover has expired.
European Policy
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In September 1999 the Committee on Culture and Education of the
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lJarliamentary Assembly of the Counci.' of Europe adopted a draft resolution on.
llooted Jewish Cultural Property stating that in order to facil,itate victim
riestitution, legislation should addre'ss.·
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• extending or removing limitations periods;
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• removing restrictions on alienability;
• providing immunity from actions for breach of duty on the part
. oithose responsible for collections;3
• providing guarantees for those returning looted Jewish cultural '
property against subsequent claims;'
• relaxing or reversing anti-seizure 'statutes which ,currently
protectfromcourt action works of ·art on loan; and
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• extinguishing later acquired title, i.e., subsequent to the
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.c. US Policy
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3 For ~~ample, the AAM guidelines provide that
In
dealing with claims, museums may elect to waiye certain
aefenses in order to achieve an equitable and appropriate resolution, In the North Carolina I Cranach case, the
h,useum took the position that since it ~ever acquired good title' to a undisputedly stolen painting, there was no breach
bf fiduCiary duty on the 'part of'the museum in simply giving it up.
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POLICY FOR VICTIM RESTITUTION page 2
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1. A. Military Law 59 .
With respect to victim restitution, Military Law., 59 (November 1947)
and the Berlin Restitution Law Uuly 1949), established a presumption of
.. wrongful deprivation as to all transfers· of property·occurring between
September 15, '1935 and May 8,..1945, rebuttable by a showing that the
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transferor received, adequate cO,~sideration or that the transferee,
protected the owners interest with substantial success.
In authorizing the military government to appoiht s·uccessor
agencies to file claims for heirless property, these laws rec~gnized that
justice required the suspension of many of the convention'aJ laws of
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escheat and succession.
Finally, these laws have been' cited as a basis for 'holding that.
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"[p]rovisions of law for the protection
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in good faith which·
. woul9,defeat the restitution of Nazi confiscations shall be disregarded."
Menzel v. List, 267 N.Y.S.2d at 819;
, 2. Holocaust Victims Redress Act [PL 105-1 58]
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"It is the sense of the c:ongress that consistent with the 1907
Hague Convention, all governmentsshoLild undertake good faith efforts
to facilitate the return'of private, and public property,. such as works of
art, to the rightful myners in cases where'assets were confiscated from
the claimant during' the period of Nazi rule· and there is reasonable proof
that the claimant 'is the rightful owner."
'3.'H.R. 4138
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The Stolen Artwork Restit'ution Act of 1'9'98 .(H.R. 4138) died in
committee but would have expressed the se'nse'of the 'Congress ~s
follows:
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a. A purchaser or seller of artwork who fails to undertake any
inquiry4 ,required under the Act. should not be permitted to assert a
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claim in fe~eral court to ownership or former ownership of the
. artwork;
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b. All museums and auction 'houses should undertake
documented, reasonable', multisource inquiries, including obtaining
information from one or more missing or stolen artwork registries
to determine whether the ~rtwork in their possess'ion has been
stolen.
c. All governments in possession of artwork stolen from'
victims of the Holocaust should return that artwork' to its rightful
owners.
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d. Parties disputing the ownership of stolen artwork should'
attempt to resolve their disputes by alternative means, such as by
arbitration, before seeking judicial reme~ies.
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"lTIhe seller. or the purchaser of artwork with a sales price of $5,000 or more. that at any time has been shipped in
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intJrstate or foreign commerce, shall before the sale undertake a documented, reasonable inquiry Into the ownership . ,
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history of the artwork. including obtaining information from one or more missing or stolen artwork registries;"
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~oJIC'Y FOR VICTIM RES~ITutION page 4
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, TlxATION
A. Tax-free Restitution
In 1999, two bills were introduced in the House -: (H.R. i 292) and (H.R.
390) - and one in the ..:. Senate (S. 779) - to exempt c'ertain amounts received in
settlement of a Holocaust claim from taxation. All of the bills are still in
"cdmmittee.
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1. S. 779 would limit the exemption to Swiss proceeds and awards'
resulting out of victim litigation in New York or similar litigation.
2. H.R. 1292 would apply to any amount received as a result of
moral or legal injustice as a Holocaust victim.
3. H.R. 390 would specifically include claims "relating to looted art
or finan,cial assets."
B~ ,Charitable Contributions
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Non-cash charitable contributions (e.g., art) are reported on Form 8283
(see attached) which requires an appraisai 'for deductions greater than $5000.
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Art contributions on audited returns (only .5%) are reviewed by Art Appraisal'
s~rvices of the IRS. Audited art that m'eets the definition ofa Holocaust e'ra
a:sset could be checked against ,a lost art or claimants database. The Pr'ivacy Act
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would bar Art Appraisal Services from divulging the name of the taxpayer even
ifr there were a match.
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Query: ·Can the Priva~yAct and/or the Inter~al Revenue Code
be amended to allow names to be divulged if there is a match
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with a Holocaust claim?
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0. Estate and Gift Tax
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, I " Assets of artistic valued in excess of $3000 (or collections of asse~s
valued in excess of $10,000) must be listed, with appraisals, on Schedule F of
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t~e Estate Tax Return (Form 706). See Line '1. Art Appraisal Services of the IRS
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che~k'
jill review the art listed on audited' returns and could
against .'a lost art or
,: "
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claimants database' but could not, under the Privacy-Act, divulge the name of
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the decedent even if there is a match., The IRS is reluctantto do anything
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~hich results in any further disincentives to full disclosure. '
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Query:, Could the IRS pull all retu~ns where line 1 of Sch~dule,
F (see attached) iridicates that the deceden't owned assets of
artistic value for review by Art Appraisal Services? .
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TA~ATION page
2
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AGENDA
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' SUMMIT MEETING OF RESEARCHERS
PRESIDENTIAL ADVISORY ,
COMMISSION ON HOLOCAUST ASSETS IN THE US '
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Where? "
Stockholm, Sweden
January 27,2000,
L Welcome and introductions'
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A. Edgar'M. Broilfman, Chai11"Qan, Presidential Advisory Commis.sion on Holocaust
Assets in the United States
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B. Hon. Stuart Eizenstat, Deputy Secretary, United States D,epartment of the Treasury
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II.! Introduction to the work ofthe U.S. Commission - Kenneth L.'K1othen,Executive Director
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A. 'Legislative rrian~ate
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B. Scope of the Research Effort
1. Restrictions djctatedby Eederal structure; co-operation with States, howeveri
2. Areas of research: gold":" why do we think we can provide additional insights
,
art and cultural objects - dte Library of Congress'
non-gold financial and economic assets.
3'. Is the American legislation ~ufficiently inclusive?
C.' Policy considerations
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lIlt General questions posed by U.S. research '::'Discussion led by Dr. Eugene''Sofer, Deputy
Di~ector
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A. What are'the dimensions of the questi<?n all of us are grappling with? Is it possible to
put the Partial view's we are obtaining in a broader, global context? trow can we test our results
both for plausibility and completeness?,
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B. The more imni'ediate questions that we are 'faced with,within'this general context' are: ,
1. Do you know whether assets looted f,i'om Holocaust victims in your country
came into the possession 'or control of the United States government,
including the Amencan Armed Forces in Europe? If so, what were those
assets? What rei evant documentation exists?
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�2. Are you aware of the dimensions and the paths by which individuals wh~
became victims of the Holocaust attempted to protect their assets by moving
them to "safe havens"; in particular, to the United States?
'3. What assets that can be categorized as "victims' assets" were restituted by the
Unit~d States to European governments? .
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4. For'assetsso restituted, what documentation exists regarding disposition by
the relevant governments? What were. the policies regarding restitution to .:
individual victims and their heirs? What were the policies with regard to
heirless assets? Were survivors, or their heirs, no longer resident in'the
country in question recognized as such and included in any restitution
activities? What were the obstacles to implementation of these poliCies?
5. Is there an accounting of what portion of the assets restituted by the United
States and/or through Allied channels was restituted in tum to Naii
persecutees? If not, are there any estimates?· . .
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C. Valuation issues'
\
. I. What methods have been us.ed to value spoliated assets contemporaneously
and as part of your current efforts?
I ~ Did European governments place a monetary value on assets restituted to .'.
them ~y the United States?
I~. Case in point elaboration of the above with respect to research on ftnaricial assets - Helen
B.i Junz, Director of Research ~ Non-gold Financial Assets (followed by questions and
di$cussion)
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v.1 Specific requests' for information by researchers iromthe U.S. Comffiissi~n - Discussiori led
b~ Helen B. Junz .
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VI:. Requests for information about U.S. sources and research questions - Discussion led by
K~nneth Klothen, with participation by.telephcme linkage from senior members of the y.S.
research staff
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VIr. Summary and closing
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A1LTERNATIVE DISPUTE'RESOLUTION
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~'aimants
Litigatio,n'of claims for stOlen art is too, burdensome for most
(Tom Kline'
has been quoted as saying that if the art 'isn't worth $3 million, claimantis shouldn't " ,
bpther) and museums (~owry 'explained that after y~ars of "contentious, expensive '
litigation,",inthe Schiele case, nothing is resolved.)
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B.. Alternative dispute resolutioh has been recommended by
The AAMD in its 19~8 guideiiries: 'co,,nsiderusingmediation wherever
, r~asohably practical; reconcile "the interests ofindiviquals or their-heirs who were
dispossessed ofworks of art with the complex legal obligations and resp'onsibilities of
, ak museums to the public for whom they hold works of art in trust."
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2. The AAM in its 1999 guidelines: "[when appropriate and reasonably practical,
museums should seek methods other than litigation (mediation) to resolve claims that
ah object was unlawfully appropriated during the" [\Jazi era without subsequent
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restitution." ] . '
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Heari~g
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~ith th'~,
3: .
witness Lowry (MoMA): first try to resolve the 'issue
claimant,
(see,Warin I Kann story), and if that doesn't work" then try arbitration 1 or ,other nonI
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litigation methods. No government forfeiture"or seizure of disputed work.
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4. Hearing witness Rogers (Boston MFA): Claims should be resolved through
amicable chann'els, preferably arbitration, without government forfeiture or seizure of
disputed work. '
H~aring witnessesWh~eler (N~~h
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Dugoq~CPO):
'5:..
CarOlina') and
.negotiations
InI the SPirit of trust and cooperation {and With excellent documentatlon)'avolded
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litigation. Note: in case of the Cranach~ the museum took the 'position that since it
nbver acquire~ good title to a undisputedly stolen painting, there wasno breach of
fiduciary duty on the part of the museum in simply giving it up.
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6. Hearing witness Weil: seek methods o,the~ than litigation (such as mediation).
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Q. Settlement example: Heirs of the Guttman family sued Searle: for oWl1ership of a
Qegas pastel that their ancestors sent ,to a Paris warehouse for safekeeping during
vyorld War II. Searle, a trustee of the Chicago Art Institute, bought the work from a New'
Y;ork gallery which had acquired the work froITl Europe and displayed it several times.
Searle had made no title inquiry but the heirs traced Searle's possession back to
Wendland. After millions of dollars in litigation expenses, the parties agreed on a pre
t~ial settlement, where, the Degas went to the Chicago Art Institute, hal,f as sale by the
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1 lin arbitration, the arbitrator is a neutral third party (or panel) who hears both sides and renders a
binding decision. In mediation, the mediator helps disputing parties reach'an,agreement but cannot
impose his decision on the parties,
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G!uttman heirs' (with the museum paying the heirs 50% of the appraised value) and the
other half as donation from Searle (who would receive a substantial tax write-off).
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establish a forum other than the courts for, resolving stolen or looted art cases or claims.
, I~dustry arbitration can be introduced by including arbitration clauses'in bills of sale or
tr~nsfer. The structure of tribunals could follow the American Arbitration Association or
o~her arbitration formats. Publish 'I~sanitized" decisions, deleting party, namE:;!S and other
identifying facts. This would preserve the confidentiality of proceedings, which benefits
, museums and dealers, while creating a body of law on looted art and claims that would
i7prove system predictability and foster settlements.
Seventh, consider fee shifting so that the loser pays the costs and/or fees, or: shift fees to
the loser after the court or tribunal certifies that a claimant ,has met the required showing of
o~nership. nS6 This would reduce [*86] the number of marginal claims and encourage
early settlements.
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OPTIONS:
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Ai. Establish an independent pool of qualified mediators / arbitrators to whom claims
,Cbuld be referred. '
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1. Established at / thorugh / by
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a. State Department
b. AAM
c. federal version of HCPO oruse the HCPO'
2. Costs borne by
a. each party
0",.,
b. government funding
c. as determined by parties in mediation or by arbirtrator~
3. Permanent standing panel or a list of experts to be called upon.
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�F.Qceitgnfunds cont~ol ,
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ExecI order 8389
AprilI '10, 1940 pursuant to 1WEA
,
section 5(b)
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8389: Freezing extended to
p'ate1nts copyrights and '
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Alien property custodian
Congress amended 1WEA to give
President power to vest (seize)
property of any.foreign cou'ntry6r
national
December 18, 1941
"
trad~marks.""
Executive order 9095 March 11,
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1942: 'President revived WWI Office
of APC and put it under him
(Crowley)
With:in Dept Treasury
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(Mo~ganthau)
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Exec order 9193 July 6 1942 divided
authority btwn APC and Treasury
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,9193 - Treas retained ',control;;over
liQUi!d asset.s "
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,Free;zing, blocking, immobilizing:
assets, Le., owner doesn't lose
title]
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,9193 ,- APC power to seize
'everything else-
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Authority over all pr,operty of
natibnals of countries named in
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8389 as amended in the US
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Also: control over loote,d property
Vesti,ng - transfer' title - but not
always- property and proceeds ~eld
in special account - then what?:
Administered, sold = unclear
Other. than "national of a designated
enemy country': could file a divest
claim with APC w/inyear of vesting
enerv wantedt6 di~poseof in US,
e.g.,1, blocked transfer of securities
Tre~sury wanted economic life to
pro~eed unfettered, mini'mize
economic burden - hence
"Iicehsing" system to perm,it
finahcial transactions.
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Basic pragmatic .policy: convert to
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cash (not patents and copyrights)
and hold cash until congress'
decides
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VALUATION·
Patents, trademarks and copyrights
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m()st frequently vested (250,000)
APC coll.ected .royalties.·
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Bysinesses operated /Iiquidated
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OAPC = holding company
controlled assets worth more than
what actually had title to
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Also estates and trusts, real
. property,'personal pr()perty····
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VIC1HMS: Since rl10st frozen assets VICTIMS:" debt claims /title claims'.
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in
US owned
indi~iduals,
bycorp~ not
limited impact on.
. where' property taken in error
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. . "clue" to victims' assets
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potelntial victims; freezing transfer
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of looted assets had greater effect
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.qnv!ctims; licenses to help.,
. victims emigrate ( beginning.
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1942)
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POST WAR
Treak never intended .to control
:
When Italy etc no longer enemy, no
foreign funds longer than .• ,
longer vesting Itali,a etc property
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(copyright patents)
necessary - downsize govt
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For Germany however vesting
protracted as w.as.end of war ~
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(finally .october 1951) vesting until
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1953
Defr0st except cloaked / looted
Concern . that (cloaked), property be
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asse~s
left with Ge~mans rather that getting
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or transactions under
duress liberated areas,' new,
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licen~es,
owners apply for
certification from foreign
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:assets back tovictirns,
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9.ov~rllmerits;TWEA, sec32
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ame~dm·ents
- didn't unfreeze but
allo~ed· APC,to
give back; 'general
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iice~ses unblocking categori,es of
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asse~s
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Certification problems
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Jan 1,948 - census / vesting option
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Marshall plan nationals - certify by
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june; 1948 or vested; non
marshall plan...:. vest
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~er1inated operations Oct~~er.
194~ and turned 'over to OAPG
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OAPe terlT!inated October 1946
Exec. order'9788 transferr:ed .to·
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Proceeds from sale of vested
property used to pay War Claims of
Americans and if foreign n~tional
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had property seizeq, his country
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responsible for compensation
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of victims assets inadvertent
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IMPORT CONTROLS
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End controls but keep looted
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. prop~erty out of the US -' securities'
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Not enough to pay claims, seizure
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ART MARKET STANDARDS
UbC/COMMONLAW
1.1 Standards of Good Faith for Art Merchants
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T~ecommon law and the Uniform Commercial Co~e (U.c.c. or Cod,e) require
. good faith n lOin the performance and enforcement of every 'commercial
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contract. n 11 The precautions a purchaser must take in order-to ~xercise good
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, f1ith vary wit~ his status and the circums~an~es of a particular transaction. n 12 .
.A:lthough purchasers "in the ordinary course ofbusiriess" must ex~rcise honesty
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in fact, n 13 a [*445] purchaser who is a merchantn 14 must in addition'
+serve "reasonable
comm~rcial standards of fair dealing in the trade."n 15
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T,he U.C.C. defines "good faith" as "honesty in fact in the conduct or trahsaction concerned."
',. U;.C.C. § 1-201(19).
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The ADAA opposes requirements that would impose a duty on art dealers to verify another
d1ealer's authorityto sell. Amicus Curiae Brief of the Art Dealer's Ass'n of Am. at 3, Porter v.
Wertz; 53 N.Y.2d 696, 421 1\I.E.2d 500, 439 1\I.Y.S.2d 105 (1979). The ADAA maintains that
the infrequency of litigation over title disputes in art transactions indicates thatthis isnota
sbrious problem. Id. at 2. In addition, the ADAA argues that the lack .of published ",
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·i.~formation about the pr9venance of many art ol;>jects makes verification of title impractical.
{d. at 5-6.
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Iheffect, the ADAAseeks to perpetuate an element of secrecy in the art market thus
~ncouraging an environment hospitableto.scams and thefts. The numerous accounts'of title
disputes published in STOLEN ART ALERT reveal that unless some action is taken, title
disputes will' continue to bea problem. See, e.g., The Notorious Von Maker, supra note 24,
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at 2; Title Disputes, STOLEN ART ALERT, Mar.-Apr. 1981, at 2. One legal commentator has
~tated that the acceptance of secrecy in art transaction makes innocent parties accomplices
,if! the passage of stolen art into the mainstream of commerce; Bator,supra note 4, at 360
61 & n.146.
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(i)ne New York court has held inquiry into title to be a prerequisite for art merchants to
~ecome good-faith purchasers. This requirement wasset forth in Porter v.'Wertz, n20 a
case which arose after Samuel Porter loaned his Maurice Utrillo painting entitled Chateau de
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Monsur-Mer to Harold Von Maker so that Von Maker could decide whether to buy it. In
procuring the loan of the painting, Von l\1aker used an alias, Peter Wertz. n21 After learning ",
MVon Maker's true identity and his prior fraudulent dealings, Porter required Von Maker to
1[*446] agree in writing either to return the Utrillo within ninety days or pay Porter $
:30,000. n22 By the time Von Maker executed this agreement, however, he had employed
~he real Peter Wertz to sell the p.ainting to the Feigen Gallery, which in turn sold it to Irvin
I?renner, who finally sold the painting to a buyer in Venezuela. h23
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~orter'
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case:
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T~e Porter opinion is'the mpst extensive judicialstatementona~ art dealer's duty to
investigate title.. ,
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Iri the' porter case The ADAA contended that it is not customary in the art busines~ for
dealers to inquire as to the title of sellers, and that to impose a duty to inquire would cripple
the art business. n~9 Nevertheless, the court of appeals, in affirming the appeliate court's'
d~cision, did notcohsider whether the gallery's failure to inquire into ownership of the
Utrillo deprived it of good-faith-purchaser status Linder the U.c.c. requirements. n40
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trhe court determined that this indifference to provenance was inc~nsistent with
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r~asonable commercia.l standards. Because good faith in the ca~e of a merchant requires
observance of "reasonable commercial standards of fair dealing in the trade," n34 the court
r~asonedthat the gallery had failed to exercise the good faith necessary"to qualify as a
b~yer in the ordinary course under section 2-403. 68 A.D. at 146
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The art world has traditionally operated i'n an envir secrecy. Many collectorS believe that
~ithout privacy~ they i-isk becoming victim of theft. However; such co'nfidentiality may
h,inder the pruchaser's ability.to inquire into title .
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Some commentators have suggested that the conimercialart world should adopt stricter'
self-regulatory measures and that states should institute certification programs. The New
y;ork State Attorney General' pro'posed a bill. in 1966 which would have .required New York'
art experts to be accredited by the New York Board of Regents. The bill did not pass,
however, prob,ably because of objections by the ADAA to a provision that immunized art
e1xperts but not art dealers from suits arisfng out of their authentication of art works. See
.quboff, supra note 37, at 984-87; see a/50 Note, The Art Investment Contract: Application
df Securities Law to Art Purchases, 9 FORDHAM URB. L.J. 385, 429 (1980) (9rguing that art
t1ransactions constitute an investment contract and should be protected by extension, of
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federal and state securities law).
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ART MARKET
At,
TITLE
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Cbrnmon law: t~lief cannot convey good title to anyone even to a good faith purchaser
fdr value. Original owners rights are greater than good faith purchaser.
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Good title means "title which is free of defects and litigation and hence may, be '
trknsferred to another." Common-law countries adhere to the principle that a t~lief
c~nnot pass righUo possession or good title regardless of a purchaser's good faith.'
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I faith purchaser is one who purchases goods or property for valuable
Good
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cpnsideration and w,ithout actual or constructive notice of outstanding rights ,~f others to
the property.
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T,herefore, a dispossessed owner retains the rights to the art work despite a [*503]
bUyer's honest ifltentions. n60 The law concerning art dealers is slightly more
cbmplicated~ To qualify as "a buyer in the ordinary course of business," n61 art dealers
a're bound by the Uniform Commercial Code'to act in "good faith," n62 by observing the
"teasonable commercial standards of fair dealing in the trade." n63 U.s. courts have
h;eld that good faith includes a reasonable inquiry in to the provenance of an art work,
and the authority of the seller to sell that artwork. Failure to make such an inquiry will
result in return of the work to the original plaintiff-owner. n64 Art dealers',dutyof inquiry
h'as been held to extend"to the appearance ,of suspicious circumstances, even absent
k'nowledge that a sale'may violate the ownership rights of a third party. Thus, if a'dealer
f~ils to inquir~ in to the provenance of a work, and the propriety of a transaction that
dppears suspicious, they are not conforming to the reasonable co'mmercial standards of
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fair dealing in the trade and could lose the work. n65 Similarly, if a. dealer fails to reveal
problems relating to thetitle of a work available for sal~, she could face an action for '
damages'
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Q;ivil law: thief may convey good title to. a good faith purchaser of goods upon the
passage of a certain' amount of time. Rights of good faith purchaser greater than those
Qf original owner. Conversely, the Civil-law system allows a good-faith purchaser to hold
good title even if the property was stolen. However, actual knowledge that a work is
~tolen automatically eliminates a purchaser's good faith standing. A sirnpletest,
determines whether a purchaser knew or should have known that a work was stolen:
~hether a reasonably diligent search would have revealed the work's status.
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Under French and Belgian law, a good faith purchaser can acquire good title to
stolen art three years form the date of purchase as Io..ng as the good faith
purchaser purchased the work from an established dealer:or open marketplace.
�. Under Dutch law, a good faith purchaser acquires title after three years.
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Under Italian law, a good faith purchaser acquires title immediately.
.
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. Under German law, a good faith purchaser acquires title after ten years
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Query: If A buys stolen art in France and acquires good title'·in three
"years, is the original theft is no longer a bar to conveying good title
when A sells the work in the US? In Autocephelous Greek-Orthodox·
Church v. Goldberg & Feldman Fine Arts Inc., 917 F.2d 278 (7th Cir.,
·1990) the plaintiff sued for the return of allegedly stolen mosaics
purchased by defendant. The court analyzed the case using both l:Jnited
States common law, and Swiss civil-law principles. If the defendant
purchased the mosaics in good faith, the defendant could be,awarded
good title. However, the court held that defendant dealer did not exercise·
reasonable diligence in researching its origin. n68 Thus, the defendant did
not [*504] purchase the mosaics in good faith. n69 The outcome was the
. same Whether analyzed under civil laW or common law, and the defendant
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was riot awarded good title. '
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Answer: . Stolen art is generally taken from art-rich locations such as Italy,
Greece, Turkey, Eastern Europe, Africa, and Oceania. Such art is smuggled
o'ut of its country of origin and often taken to Western Europe -- usually to a
country, such aS,Switzerland, with liberal bona fide purchaser laws. n7 Once
the property is transferred into such a jurisdiction, it can be purgedo'f its..
tainted title and transferred for further value without exposing subsequent
buyers to a risk of loss. These transfers produce receipts or bills of sale, which
are virtually all that the major auction houses require to show good title.
From law review article 36 .How·, LJ. 17 (1993)
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a~·the
Unit~d
· cbmmon law jurisdictions, such
United Kingdom and th'e
States, follow the'
phnciple nemo dat quod non habet.n28 Thus, no one who traces.title through a thief may
d¢feat the ownership claims of the rightful owner .in an action for replevin. Conversely, the
[1*22] civil codes of continental Europe, based largely upon Roman antecedents, allow a '
b9na fide purchaser who traces title through a thief to obtain good title even against the
rightful owner
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· "nA] state where a chattel is situated has a qominant interest in determining the
· circumstances under which an interest in that chattel will be transferred .... "
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Warranty: AAMD guidelines: When purchasing works of art, museums should seek
r~presentations and warranties from the seller that the seller, has valid title and that the
vJork of art is free from any claims.
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cbnsumers may also rely . , . . in sales by art merchants under §2- .
on a'warranty of title implied
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3112 of the Uniform Commercial Code. This warranty liability to private purchasers might '.,
provide some incentive to dealers to establish clear title in the sellers. However, as the
t~ade associations' briefs make clear, there is no existing practice to do so and, as a
�Plil'actical matter, many dealers simply disclaim title under this section;, There is also, some'
ql!Jestion as to " whether a disclaimer of title is effective because artwork might be considered '
I
a !unique article and therefore not subject towaiv~rs Ulider Section 3-312(2) qf the Uniform
C?mme'rcial Cb'de.,'See'also'Deborah D. Hoover, Title'Disputes in the Art Market: An
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Emerging Duty of,Care for Art Merchants, 51 GEO. WASH. L. REV. 443. 449 (1983).
B~ SECRECY
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The Dobbs article in the Washington Post, Sunday May 20 2000 explained - as we all
know - that the fate of stolen Holocaust era art is "obscured by the traditional secrecy of
tria international art trade .. ;" and again, that the "art trade 'is secretive by nature; with '
many buyers preferring anonymity, and some art dealers going to great lengths to
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cbnceal the true originof a painting for commercial reasons.'"
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gea,Iers rely on promises of confidentiality put there is no legal basis for these.
D:eWeerth learned of Baldinger's possession of the Monet through the efforts of her nephew, ,
Peter von der Heydt. In 1981, vonder Heydt was told by a cousin that DeWeerth had owned "
alMonet that had disappeared 'during the war. Shortly thereafter~ von derHeydt identified
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t*e painting ill a published volume of Monet's works, Cla,ude Monet: Bibliographie et
Catalogue Raisonne, Vol. I 1840-1'881 (intro. by Daniel Wildenstein, 'La Bibliotheque des
A:rts, Lausanne and PariS, 1974), which he found at the Wallraf-Richaitz Museum in
C;blogne, less than 20 miles from where DeWeerth has ,been living,since 1957. The
G,atalogue Ra!sonne indicated that the painting had been sold by Wildenstein in 1957 and
tTat Wildenstein had exhibited it in 1970. In 1982, D~Weerth retained counselin .New York
and requested Wildenstein to identify the current owner. When Wildenstein refused,
DeWeerth brought an action in NElw York Supreme Court ,under 1\.1. Y. Civ. Prac. L. & R. §
31102(c) (McKinney 1970) for "disclosure to aid in bringing an action." In December 1982,
, t~e court ruled in favor of DeWeerth, and Wildenstein was compelled ,to identify Baldinger.
, By letter dated December 27, 1982, DeWeerth demanded , return of the Monet from
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jaldinger. By letter dated February 1, 1983, Baldinger rejected the demand.
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~HIRDPARTY ACTIONS: ,
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Tjhird party claims that ripple out of replevin actions =additional cost delay for claimant.
In Menzel, court held that a,bonafide purchaser didhave' a claim against the dealer for
,breach of implied warranty bfquiet possession -like real property case.,"
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'WARRANTY
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According to Uniform Commercial Code, there' is in all sales contracts a warranty by the , '
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seller that "(a) the title conveyed shall be good, and its transfer rightful; and (b) the goods
encumbran'ce of which the,
shall " be delivered free from any security, interest or other lien or ' "
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buyer at the time of contracting has no knowledge." 45 U.C.C. § 2-312. ,
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The warranty under this provision will be "excluded or modified only by specific language or
by circumstances which give the buyer reason to know that the person selling,doesnot
cllaim title in himself or that he is purporting.to sell 'only such right or title as he or a third
person may have. Id. § 2-312(2). The official comment in the UCC states, however, that
the cause of action accrues when the breach occurs, and that the breach of the warranty of
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" g90d ,title OCCU rs when' tender of del iyery is made beca use the wa rra nty is not one wh ich
extends to the future performance of the-goods. n48 U.C.c. § 2-312.' ,
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SfANDARDS:Kline: best contribution for claimants: :create a p'ermanenf'commission
what would oversee the establishment of standards for the ~rt market just as they exist
inlother markets that affect interstate commerce,:
OPTIONS:
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(a) Galleries/auction hoLlse~,must give buyers a warranty of good title upon tbe
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sale of any European painting created before 1945. '
, (1) Breach of this warranty would hold the gallery/auction house strictly
liable forthe market value of the,workat the time' of the breach.' '
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(2)
(b) Galleries/auction houses must getawritten,Glearance from the CDS:
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(centralized data base) prior to the'sale of any European painting created before
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there could be required disclosure'to buyers or donees of proven~nce, and dealers
would be liable for negligent or knowing misstatements of provenance. Should this
be limited to works produced after a certain date? Should provenance only have to
be traced back sixty to eighty years? Shouldtracing'periodsvary with the value of
the goods? Limiting dealer liability or warranty for provenance errors by defining
research sources to be consulted in certifying provenance should be contemplated as
a solution.,
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after some defined notice period, either title should be deemed cleared or the rights
of the true owner shOUld be limited to some amount ofm()ney that would diminish '
over time following the notice period. Should fair market value and the value at time
of purchase or 16ss be considered? Who bears the burden' of appreciation in value?
Fifth, a defined clarms procedure, iilCluding a defined approach to proof of title or
ownership, should, be established. Upon the meeting 'of the defined showing by a
claimant, the burden should shift to the defendant to disprove the claimant's title.
Notice procequres to limit competing claims, to the.sallle artwork should be, utilized.
HR 4138
a) INQUIRY REQUIRED ON REQUEST- if~"requestismade under subseciion'(b), the
seller or the purchaser of artwork with it sales price of $5,000 or more, that at any time
has been shipped in interstate or foreign commerce, shall before the sale undertak~ a
documented,' reasonable inquiry into the ownership history ofthe -artwork, inciuding
obtaining information from one or more missing or stolen artwork registries.
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(b) REQUEST- Before asale'described in subsection (a),,~ individual may request an
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inquiry under that subsection if the individual produces, ~ufficient evidence, according to
standards established by the Attorney General,thilt the art'Y0rk for which the individual
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requests an inquiry was stolen from the individual or from a member of the individual's
, family.
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, (c) EFFECTIVE DATE- This section shall apply to artwork sold 60 days or more after
the date of the enactment of this Act.
It is the sense of the Congress th~t-.;.
(1) a purchaser or seller of artwork who fails to undertake an inquiry required
under section 3(a) should not be.permittedto assert in a court in the ,United States
a claim, under Federal, State, or otherwise applicable law, to ownership or former
ownershIp of the artwork;
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matteoli commission
Research in the private archives of actors in the art market. " '
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AI sign i ficant number 6f works in the Art Recovery Co in mission were included in transactions on the
F~ e n c h
aft market during the Occupation. It would seem imperative for all possible initiatives be taken in order to
fur . the r, in private archives,. the research which has already been carried out in public archives.
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To this end, the federations and associations of art dealers and gallery operators, in addition to the C ha m
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nla tionaledes commiss air s - p r i s' e u r s
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artd the Compagnie des commissaires-priseurs de Pa r is,
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c~mtacted by the Mi ssion in order to obtain access to the private archives of th~ir me~bers.
For the purposes of identifying original owners, such a procedure is indispensable in order to detehnine
the
c~mditions - forced sale, theft, volun t a ry sales,etc. - through which certain paintings came into the poss e
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of their members before these people then sold them.
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E:ncQurage' art dealers to open
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p,reserve and open records of dealers who go out of business,
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after -'-- years and set upa system to
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Kline:' create permanent comm'ission that would oversee the, establishment of
st,~ndards for the art mar.ket just as they exist in other markets that affedt,
irlt~r~tae com~enrace '
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Kline: no legitimate reason for keeping art deals sec;:ret and if dealers are, '
rriaking judgments about what i~fo is released, the're should be some
standards. .
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LJird: if disclosure requiremen'ts placed on dealers and auction houses, then
must extend internationally"
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�To: Gene Sofer and Marc .Masurovsky
From: Albert Schmidt
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Re: Proposal for Austria Chapter
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I I wholeheartedly agree with Marc's proposal to create a separate chapter on Austria.
It
would help relieve the burden (on the other writers) of trying to address the Austria
question within the context of the other chapters ANDmake it easier to showcase
Austria's very peculiar post-war role in the restitution process. I would; however, make
the following suggestions:
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1) Dissolve the Case Studies chapter and·includdts most significant Pa.r:ts (Gold
Train and Becher) in the new Austria chapter. We discussed this possibility at
the meeting but did not reach a final conclusion. The only problem is that the
G.T. and Becher restitutions did not go awry because of anything to do with
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Austria per se .. The assets were held in Austria, but the restitution was carned
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out (or not carried out) by U.S. authorities. The link is superficial, but it is a'
link nonetheless.
2) I would be cautious of Marc's section 3c (U.S. intelligence and victims'
assets). It sounds fantastic, but do we have sufficient .evidence of this? Marc
would know better than I would.
3) Keep it concise. The topics to be covered (e~g. Austria as victim/victimizer,
the Cold War, Hungary going "red") can be written on ad infinitum. Always
return to victims' assets. Ml;lst keep it short, sweet, and provable. Rely on
some secondary materials and the documents we have on.hand.
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4) It would be great to have as many people on this as possible (Marc, Charlie,
and me) .. Must coordinate our efforts to avoid redundancy and conflicting
.concl~sions .. Must get all the information togetlier in one place, at one time.
5) Very topical and timely. "Commissioners want to know if Austria got off
easy."
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April 26, 2000
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To: K. Klothen
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: 'G; Sofer
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From: Helen B. Junz·
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Rb: John Bendix "research idea" note of April 1'4,2000
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Yjou gave me yesterday a copy of the, above note addressed to you and Bob Grathwol. The note discusses
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a (possible scan by "some diligent researchers"of the Federal Register to cull the names of successful
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claimants to property vested in the Alien Property Custodian. This then should help us arrive at "the
"feal" amount of unclaimed property", after "adjusting for itlflation, current value, etc" and subtracting the'
rbsult
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fro~ the "~round $198 million worth of German-held assets" known to.h~v~ been in the United
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S.tates in 1941. More importantly, according to John, the names of these successful claim~ts than could
bie eliminated from any victim name list that we rpight want to run against uncl~imed property lists,'
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taking that process more efficient.
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~egardless
of the possible merits qf this idea in general
which I comment on below - you should know
that the proposed cumbersome Federal Register approach is totally unnecessary. Anyone who has ever.
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looked at an Annual Report of the Alien Property Office (or the predecessor Custodian reports) would .
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have s~en that the appendices (called Exhibits) list Vesting . . . issued, Nullifications,
orders, Return orders
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fivesting orders, Court cases, anda number of other actions. (See atta~hed sample pages, of Exhibit A of
the 1944 Report and Exhibit K of the 1951 Report; note that the Exhibit lettering tends to change year by
~ear).
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All these c~ the relevant order numbers,
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id~ntify the owner (or claimant),. the type of property,
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the date executed and the Federal Register citation. We have looked at a' number of the latter and found'
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~hat they exceedingly cumbersome to use for data base construction purposes. As they repeat only the
~asic information included. in the vesting/return orders and these are actually easier to handle, we have ..
6hosen to use them for our data collection work. This has been one of the grounds on which we opposed
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~estruction of this material in the near future. In ~ddition, of course, the. vesting order files incltide
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~orrespondence that is not reproduced in the Federal Register and that can provide valuable insights.
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ks to the idea as such, I believe
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th~t some better. understanding of the documentary base' will' obviate
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·further consideration. The unclaimed victims' property we seek to discover resides outside the Fed~ral
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GLemment and, th~refore, cleaning liS~S of the names of su~cessfulclai~~ntsagai~st the Alien Property
C~stodian, or his successor, does not move us further along. As to' ~si~g this approach in our investigation
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of the vesting files, ,as noted above, we have more direct and efficient possibilities. These' we' are in the
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pFocess of pursuing, as you know.'
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1\,8 to working backward to some known 1941 total of foreign-owned assets - which should not ,be
equated to "Germari~held" assets - fi~st, not the total of even German-held assets was vested and certainly
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not the total of all "enemy" assets. Accordingly, any simple subtraction would not yield the total of
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unclaimed property; second; "adjusting for inflation,' "
current value" etc." is not an easy, offhand exercise
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eyen for homogenous sets o! assets, as the negotiators on insurance policies and bank accounts can"tell us;
s¥ch adjustment of portfolios that run the gamut of asset classes would be a giant undertaking.
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I !do not think it is useful to add to the above at this stage. I would suggest, however, tha,t some discussion
olf ideas -'especially when they hav~ the potential of being turned into workable approaches.;. with those
Jho have been working on the issues in question wo~ld be beneficial. In fact, expansion of routine
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circulation of working notes beyond a strict need-to-know to those in a position to contribute, should be
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~ncouraged, if not required. On that basis, I am at fault in addressing, this memo to only the two of you
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~nd I have absolutdy no problem with it being circulated,more broadly.
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�, CLAIMANTS
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necessary elements of a claim for the return of Nazi-looted art are
~I· the claimant is Or is the leg~imate heir of the true owner of the property;. .
~,the property had been unlawfully or wrongfu'liy cOnti'scated by the Nazis or their
ccillaborators; and .
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~: the prope~y was not subsequently restituted to the true oWh~r or his heirs.
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Ownership. '
Wh~ bears the burden?
1. How does one establish proof of ownership?
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a. The AAMD and the AAM guidelines state that the museum should
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request evidence of ownership from the claimant in order.to assist in determining
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the provenance of a work of-art."
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,b. There is no independent criteri,a: no central registry of-art that lias
been legislatively recognized as definitive nor 'any title recordat,ion system akin to
real property. There are the Art,Loss Register 1 and Int~rnational Foundation for
Art Research,' which are not governmental resources, and Interpol and FBI
databases, which are offairly recent vintage and are inaccessible to the 'general
public.,'
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., c.The usual Indicia of ownership o'r title; such as bills sale, accession
and/or inventory records, artists' records, and insurance records may no longer
exist. Some information can be found in catalogues or from personal testimony
but nothing is uniformly recognized as dispositive, or even sufficient to ,shift the
burden of proof to the defendanUo disprove the claimant's title .
. Note: ,In the North Carolina case, Dugotexplained that the successful
negotia!ions were possible because ofthe high quality of the claimants
documentation.
2. Who decides which claimant - if there are more than one - is. the rightful heir?
Note: There were bogus claimants in the MoMA l Schiele case. ' '
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3. What if there are no' claimants - see chapter ,_._ _ _ _ _ _ _ __
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Bi. Unlawful or wrongful confiscation. How to prove it?
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'Note: there
are~ 'tor example, lists of works confiscated for the Linz
. museum and for Goering.
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Not subsequently restituted.
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~eMontebelio endorses the useof the Art-Loss Register.
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The provenance can show that a painting wa'sstolen from A in 1940, shows up ,
in /B's collection 1950 and there is no information on what happened inbetween. How" ,
does one show that it was or was not returned to A who then sold it to a dealer who sold
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SI;:RVICES
'AJ Holocaust Claims Processing Office
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A]~yone with reason to believe that art belonging tothem or a relative was'lost, looted or stolen
between January 1, 1933 and May 9, 1945 may submit a claim\vith the Holocaust Claims
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, Prbcessing Office. Information provided on the claimfomi will be used as a starting point for
archival research. Moreover, it will be compared with provenanc~ data, insurance company and
m~seum records, Nazi confiscation lists, aucti9n catalogues, and other resources in an effort to
locate the missing work of art and aid in its recovery.
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b.i ?e Mont~be~lo: comprehensive central data base highlighting information about outstanding
cl~lms for mlssmg works of art"
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Eq.elstein: central data bankwhere one Could register his claim
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K~)l1e - so much money on bankd accounts but art ~laimants left to their own devises; not
e~ough to just put stuffup on the web and hope the claimants will see it. They dori't have
enough information to make a claim.
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RIGHTS OF ,CLAIMANTS
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Matteoli recommendation
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I~ cases where property, the existe~ce ~f whic'h in 1940 is e~tab'lished, has been the'
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sl!lbject of spoliation but has not yet been returned or compensated, compensation is ,a
ri@ht irrespective ofany statutes of limitations which m'ay'be in effect.
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K,ine holocaust art thft claimants need a'more receptive atmosphere 'and financial assistance to
plltrsue claims
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'March I, 2000
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'To! Gene Sofer
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From: H.B. Junz
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Re: Background paper
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PI~ase find below some quick impressions of th~ paper. After we have our mee~ing, if wanted, I
will be happy to provide more detailed commentary.
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First, generally the paper is trying, unnecessarily, to do too much:.we do not really need a run
d~wn on isolationism; US-Soviet ~elations, Ribbentrop Pact, etc. If the judgement, however, is
th~t we do, it must be less sweeping and impressionistic.
wh~t
led to and the extent of the spoliation and dispossession do need
sJcond, the sections on
deepening and thorough fact checking. For example, the dating of first deportation is in error, it
se~msmighty strange that Auschwitz is not mentioned in the listing of extermination camps -:
thpugh it really is not necessary to list them at all. A better background factor would have been
the death toll by country, for example: On the spoliation side, there is confusion about the
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cQntent of the Nuremberg laws, there needs to be a strengthenjng of some of the explanatory
p~ras. on the dispossession mechanisms, there is no word regarding the spoliation and plunder in
thr occupied countries and territori~s. After all, it is the spoliation and its 'effects that are the
raison d'etre of the Commission.
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O~ the whole, the paper is rath~r disjointed,itspend~ too much"space on some ofthe political
background without giving needed depth and rather short changes the spoliation background and '
thb mechanisms the were the asset control channels during and after the war as well as those that '
b¢came the restitution channels. Thus, the role of cu~toms for example was not confined to art
it~ms. There is a misunderstanding regarding the content of J C 1067, ,which may be due to
d~aling with it in a couple of impressionistic sentences. One also would get the impression that
th:e US Army was the only actor on the scene. '
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A~so"more specifically, there is many a slip ofthe pen - or mouse -ranging from calling the
, F<:lreign Exchange Depository the Federal Exchange Depository, to confusing the Census of
F0reign Assets,with th~ reporting of enemy assets, to mixing DPs and refugees, after having.
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: Of course, all these can be fixed in the end, but I thought that until we know how you want to go
, o~ this, it would be not terribly useful to spend the time to give chapter and verse on each and
every one ofthem.,
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�INTEROFFICE MEMORANDUM
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To: G. Sofer'
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From: Helen B. Junz
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Re: Jeffrey J. Clarke memorandum of June 19,2000
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Date: 6-23-00
Thank you for sharing Mr. Ciarke'g memorandum, entitled "Review of Holocaust Asset
C9mmission Draft Manuscripts". Given its content, I feel it needs a reply for the record. My
cdmments relate primarily to paras.3 and 5 of his note, which deal with the Property Control
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paper.
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I can only be amazed at the lack of professionalism exhibited in both the content and tone
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Mr. Clarke's comments. This comes out most clearly in Mr,' Clarke,'s belief t~at the, conclusion
,of the paper is "that the u.s. military government was remiss iIi not instituting a longer and
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h~rsher occupat~on". One wonders whether Mr. Clarke bothered to read the paper at all, beyond
counting the number of pages and the line spacing (see his first paragraph). The paper, in fact,
gqes to considerable length to s~t out the policy dileminas and the political environment th~t
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hJlped shape the directives the Military Government received to guide its restitution activities. It·
tlther" repeatedly, describes the enormity and the complexity bf the task.
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A~ to his editorial comment, I can.only cite the,fact that five invited readers, three outsiders arid
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two uninvolved insiders, found the paper clear, logical, informative and well-structUred. Advice
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was confined to a small number of queries and some editing suggestions. This, however, does
n~t mean that a minority opinion should be laid aside. Still, for it to be considered seriously, it
nleds at least to substantiate its points; I, of course, would be more than pleased to' receive any ,
sJ,ecific questions and/or
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suggesti~nsMr. Clarke might wish to make.
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Finally, I am puzzled by Mr. Clarke's remark that he understands that
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are currently "massaging" the Junz-O'Connor piece; .. ". As far as I know, neither the Executive
D:irector nor the Deputy Director of the Commission has assigned such a task to anyone nor have
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they expressed a need for doing so.
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I would be pleased for you to share this comment with LTC Mittelstadt, the recipient of Mr.
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claike's note.
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"FI~ST
DRAFT (Sept. 27, 1999)
, ~HE'UNITED STATES CUSTOMS SERVICE: POLICY AND 'PRACTICE REGARDING
THE IMPORT OF ART DURINQ AND AFTER WORLD WAR II
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. .Following World War II the Unit<XIStates gOVernment was committed to take any
measures feasIble to dIscover, apprehend and reshtJ,ltecultural objects looted or Illegally seIzed by
oth~~' persons, including members of th~ armed forces of
thelUnited States, The policies '~d proc~u~~s d~veloped by the Department of State and the '
the! Axis goveI1)1Ilents 'or personnel or by
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Unjted States Customs Service implemented United States policy regarding the restitution of
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stolen or looted cultural objects as expressed in international agreements, the laws promulgated
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, fol~owihg World War II by the United State 'Military Government ("OMGUS") and existing,
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United States law.
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RestltutlOn P0 I'ICY
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Because the policies of the U.S.
Cu~tbms Service were inte~ded to aid in the'
imblementation of the restiiution policy, a brief overview of restitution policy may s':"e as an'
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introduction to the Customs pOli,cies. The primary instrument of international law regarding the
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plJnder and lootirigof cultural property was the Convention Respecting the Laws and Customs of
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War on Land of 1907 under art. 56 of which:
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The property of municipalities, that of institutions dedicated to
religion, charity and education, the arts and ,sciences, even when State
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'property, shall be treated as private property.
All'seizureof, destruction 9r wilful damage done to institutions of
tbi's character, historic monuments, works Of art and science, forbidden,
,and should be made the subj~ct of legal proceedings.,
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qonvention with Respect to the L~ws and Customs of War on Land, Oct. 18, 1907,36 Stat. 2277 (1911), T.S. No.
,539 [hereinafter Hague Convention].
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�The Inter-Allied Declaration Against Acts of Dispossession C~mmitted in
Te1tories
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Und~r Enemy .Occupation or Contro12,' known 'as the Declaration of London,
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altijough pever formally adopted into United States law through:enabling legislation, is the
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d04u~ent most frequently cited as: the"basis for restitution following the War. The Declaration of
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Lo~don, signed by '-- of the Allied nations provided that, "the Govemnient~ making this
Dehtaration and the French 'National Committee reserve all their. ,
rights to declare' invalid' any'
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tr~sfers of, or dealings with, property, rights and interests of any ,description whatsoever which
aretor have been, situated in th'e territories which have
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co~e under the occupation or control,
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direct or indirect, of the Governments with which they are at war, or which belong, or have
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b~llonged, to persons (including juridical perso~s) resident in such'territories. 'This warning
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applies whether such transfers or dealings have taken the form of open looting or plunder, orof
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trarsactions apparently le~al in form; even when they purport to.,be voluntarilyeffected."
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The principles of the Declaration of London were confirmea by the Final- Act of the
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Uriited Nations ,Monetary and Hnancial Conference, bette~'known
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~s the i3rettonWoods;~
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Conference, which was held~t Bretton Woods, N.H. in 1944. Because of concerns that cultural
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pr0perty formerlyin an Allied or, . . ' " found after, the war in ,a ne~tral country,
n~utral country, and
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mJght not fall under the Hague Convention or the Declaration of London, the
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gove~ents ofthe
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all;ied and neutral countries pledged to prevent any disposition oC or transfer within their
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2
Declaration Against Acts cifDispossession Committed in Territories Under Enemy Occupation or
Control, 5 January 1943; 8 Department of State Bulletin 21 (1943); see also u.s. <lept. Of State Foreign Relations of
th/United states. voL 1 General (Washington, D,C.: U.S.'Govemment printing Office, i943), 439-459,
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3 .tieco~endationVI. Cite to be added.
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The principles of the Declaration of London were again confinned by the
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C00rdinating Committee of the Allied Control Authority Quadripartite Procedures jorl!-estitution
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of April 17, 1946 where it was .stated in Appendix A that "[t]he question of restitution of property
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renloved by the Gennans from Allied countries must in all cases be examined in light of the
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Deblaratio~' of 5January,1943."4 This wording i~ reiterated as a basis f~r restitution in Title 19,
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Military Government Regulations.
One method for effecting restitution was set forth in a tripartit~ agreement
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co~cluded among the United States, the United ~ngdOrh and France on July 8, 1946, which
recbmmended that the governments of allliherat6dcountries compile lists of "spoliated articles"
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an4 that 'the lists be circulated to art dealers, museum authorities and '~specialized people who will
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be under the saine obligation of vigilance as the custo~s authorities and compelled to refer
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suspicious cases to the central administratiohs."s
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The Military laws p~omulgated by OMGtJS in September 1944, proscribed all
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tr~sfers of works of art-and provided for restitution. Military Law 52initially provided that "no
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pe~son shall imp9rt, acqui~e, or receive; deal in, sell, lease, transfer, export, hypothecate or other
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wise dispose of, destroy or surrender possession, custody or control of any property: ...[w ]hicli is
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a work of art or cultural material of vabe or importance, regardless of the ownership or control
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This law was revised in 1946 to
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~l1ow commerce in art objects, with the exception of
4 A~pendix A to CORCfP(46) 143DRDRJP(46) 14 Revise, Lot 62D-4, Re~ord Group 59, Records Maintained by the
Finf Arts and Monuments Adviser [sic] 1945-61 ("Ardelia Hall Collection"), Box 24.
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.5 o;epartment of State, Incoming Telegram, T,ripartite Agreement Documents, Lot File ,62D-4, Entty 3104A, Record
Group 59, Records Maintained by the Fine Arts and Monuments Adviser [sic] 1945-61 ("Ardelia Hall Collection"),
Box 1.
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6 Military Govermnent - Germany, United States Zone, Law'No. 52, Amended, Blocking and Control of Property,
M. UProhibited Transactions, File
,Entry
,Record Group 59; Records Maintained by the Fine Arts and
M~numerits Adviser [sic] 1945-61 ("Ardelia Hall Collection~'). [This in must be checkedi]
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�ObJets'valued at "1 0,000 Reichmarks, which had to ?ereported. '
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I~ the'''press release arinouncing
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thiJ change in Military la~ 52, the Public relations office of OMGUS stated that.Military law 52
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translated the policy implicit in the London Declaration into action. 7 Military, Law 52 applied to
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U.S. personnel as well, and any purchase over the amount of$50. had to be approved by an officer
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of the Monuments, Fine Arts and Archives
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Section. 8
The principal purpose 'of Military Law 59, "Restitution ofldentifiable Property"
w4 to effect restitution of identifiable property to persons who were wrongfully deprived of such.
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prdperty betw~en January, 30, 1933 and May' 8,,1945 because ~ftheir race, religion, nationalio/,
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iderlOgy or opposition to the National Socialist regime. In order to make out a prima t.acie case, a .
person belonging to the class of persecutees had to show only two facts: (1) that he belonged to a
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class of persecuted persons; and (2) that-he transferred or otherwise surrendered identifiable
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property within the designated time period. Such allegations were sufficient to, raise a rebuttable
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presumption that he acted under duress and that the transaction was invalid. 9
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United States Law
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The most important legal instrument in place to
prev~nt the. importation of stolen.
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. artiin the early yyarsofWorld War II was the Trading ~ith the Enemy Act (50 U.S.C. Ap~,~ §§ 3
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6, 16), which had been enacted in 1917 and was amended in 1933 and agaihin 1942. Underthe
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Tr~ding With the Enemy Act, the import of anything acquired directly or indirectly from anyone
wJo is an enemy, or the ally of an enemy, is
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7 OMGUS,'Public
subjec~ to forfeitur~ with a fine of $50,000 or
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Relations Office, APO 742, Berlin, Gennany, Dec. 10, 1946, L~'t File 62D-4, Entry 31 04A, Record
Gr~up 59, Records Maintained qy the Fine Arts and Monuments Adviser [sic] 1945-61 ("Ardelia Hall Coll~ction"), ,
Box 24. "
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To be added.
st~ary certainprovi~ions
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of
of US. Military Government
59, "Restitution ofIdentifiable Property," Nov.
1°'11947: ,Record Group 260, Recor~~ of the US. OccupationHeadquarters,\Vor1d War'll" Entry 1, B,ox67. '
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imprisonment or both. IO According to the press release issued by the Public Relations.Office of
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OMGUS on Dec. 10, 1946, U ,So personnel were informed that any purchases of works of art that
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we~e not for personal use ~ould be a violation of the Trading With the Enemy Act, as well a~
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E~lopean
Theatre regulations. I I
The United States 'Post Office was also authorized to investigate all foreign mail
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parcels. U.S. armed forces personnel stationed outside the continental United S,tates were entitled.
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to :!free entry of gift parcels of an aggr~gate value of $ 50 when accompanied by the required ,
.. dedlaration. The Postal authorities were authorized to inspect parcels that were not accompanied
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by ~ proper declaration or where the appearance of the parcel indicated it might be 'valued at more'
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than $ 50.
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The Roberts Commission, fearing a flood oflooted art would find its way into the
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international art trade at the end of hostilities in' Europe, recommended that the United States
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Cu'stoms Service be given the power to detain any artworks entering the United States. I3 Thus on
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Julfy 8, 1944 Treasury Decision 5107'2 was enacted under sections 3(a) and 5(b) of the Trading
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the Enemy Act (copy attached) and provided for a procedure for the release.of art objects
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§§ 3(a), 5(b) and 16. The Trading With the Enemy Act, as amended mby Executive Order'9095 of March II,
19~2, broadened the powers of the Office of the Alien Property Custodian as succ.essor to the Alien Property:,
Custodian ofWorldW~ I. Executive Order 9567, issued on June 8, 1945, extended the jurisdiction of the Alien
Prdperty Custodian to all property in the U.S. owned by Gemiany or Japan and their nationals. See Annual Report,
Office ofAlien Property Custodian, for the period ending June 30, 1943; at 147, 150; Executive Order 9567 10 FR
6917 (June 12, 1945). See also pp. of this report .(Akinsha section).
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II'Supra. n.6.
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12 P.L. 790; T.D. 49755 (to be completed). Add note re: Joe Tom Meador and the Quedlinburg Treasures that he
mailed home?
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Minutes of the Meeting of the Roberts Commission, Feb 3, 1944; Record Group 59, Records Maint~ined by the
Fine Arts and Monuments Adviser [sic] 1945-61 ("Ardelia Hall Collection"), Box 54.
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�imported in to the United States after March 12,1938. 14 Under T.D. 51072 anyone seeking to
imbortanyart object into the U.S.
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frorh:~y country otherthan those of the United Kingdom was
obl:iged to obtairi a license to do so by submitting an application (Form TFE-l, copy attached) and
. a Jport on thenature ofthe work and
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theci~cumstances of its acquisition (Form FFC 168; copy
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att~ched). Under T.D. 51072 the definition of an "art object" included (i) an object worth $5,000
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or more, or (ii) of artistic, historic, or scholarly interest irrespective of monetary value and of one
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of the following categories: (a) paintings in oil, mineral water"or other colors, tempera, 'pastels,
drJwings and sketches inpen, ink, penciI; or
~atercolors, engravings, w~o~cuts, prints, ...
lit10graPhS, miniatures; (b) statuary;' sculptures; c) chinaware, glassware, pottery;' porcelain; (d)
ru~s, tapestries, laces and other textiles; (e) jewelry, metalwork; (t) books, manuscripts,. archival
mJterials and records; (g) furniture; (hY curios.
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By advance agreement between the Treasury department and the Roberts
cobmission, U.S. co'risulsabroad s6n advance notices of shipments of art objects
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t~ the Foreign
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Fuhds Control and to the Roberts Commission. ~ll applications for licenses under T.D. 51072.
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w~re submitted to the Rob~rts Commis~ion for approval. According to a Memorandum dated Jan.
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27j 1947 from Ralph H. Stimson of the Division of Economic Security Controls of the State
DJpartment, the Roberts Commission consulted him on several occasions for advice based on in
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formation from the .Safehaven files. IS
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79 Treasury Decisions Under Customs and Other Laws July 1943 - December 1944 (Washington, D.C., U.S.
Gorernment Print~g Office: 19:5) 247-48.
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IS Memorandum. Restitution of Looted Cultural Property Seeking Safehaven in the United States, January 27, 1947;
Lot File 62D-4, Entry 31 04A, Record Group' 59, Records Maintained by the Fine Arts and Monuments Adviser [sic]
1945-61 ("Ardelia Hall Collection"), Box 24.
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�The Roberts Commission wastemiinated on lime 30, 1946 and shortly before its
dis~olution the members of the 'Commission requested the Treasury Department to repeal T.D.
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51072. 16 This was done effective June 30, 1946, despite the recommendation of the MFA&A
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officers and many in the State Department. A Memorandum written on Jan. 27, 1947 by Ralph
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Stimson of the State Department states:· .
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The repeal of T.D. 51072 would appear to be contrary to the intent and spirit of this
resolution [resolution XIX of the Inter-American Conferenc~ on problems of War
and Peace]. unless other legal qases can be found or adopted to accomplish the
j. same purpose. It would appear that the Government of the United States is
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committed by Resolution XIX, by its declared policy and acts, and by the requests
it is making for action by the liberated and neutral goveniments, either to reinstate
the Treasury Decision or to adopt effective measures to locate and restitute looted
property seeking Safehaven in the United States."17
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The State Department made several recommendations, stating that "there is an
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ur~ent need for some measure of surveillance, and a workable method for seizure and restitution
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to Igive best compliance with ... international committllents."IS The State Department also
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prbpared a State-War-Navy Coordinating' Committee, f'SWNCC") Memorandumproposing a
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pr6cedure for finding, seizing and restituting looted cultural objects that had already entered the
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U.iS.; it was approved by the SWNCC on Jan. 28, 1947 and printed in 16 Department a/State
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Bulletin 1947.
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16To be added.
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17 iRestitution of Looted Cultural Property S~~~~ S~f~haven.~ the United ~tates, Jan. 27, .1947; .Lot File 62D~4,
Entry 3104A, Record Group 59; Records Mamtamed by the Fme Arts and Monuments AdVIser [SIC] 1945-61 .
("Ardelia Hall Collection"), Box 24. Earlier in the document Stimson had listed other international instruments that
e,idence U.S. commitment to restitution (e.g., the 1907f!ague Convention, the Dec1arationofLondon, etc.).
.
IS!confidentialletter from Mr.
ThorPe to W.R. Johnson, Commissioner of Customs. F~b. 24, 1947; Lot File' 62D
4'IEntry 3104A, Record Group 59, Records Maintained by the Fine Arts and Monuments Adyiser [sic] 1945-61
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("f\rdelia Hall Collection"), Box 24.
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The State Department and the SWNCC suggested that a legal basis for action
. ag~inst those who knowingly import or handle looted property val~ed at $5,00001' more already
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exi~ted under U.S. law (emphasis added). Specifically cited ~e the National Stolen PropertyAct,
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18 r.s.c. 2314and 231~;~18 ,U.S.C. 545, Smugglin~goods into the United States (fo~er1y 19 .'
U.S.c. 1593; as cited by Stimson); and the Tariff Act of 1930, 19 U.S.C. 1618. Moreover, in
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1948 officials of the State department initiated conversations with the F.B.I., which agreed to
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assist'in the recovery of stolen works of art and suggested that such works should be placed on the
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, N.p0nal Stolen Property Index, which was circulated to the poli~',and, they maintai~ed, would be
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"used constantly by dealers."19 Among th~ suggestions was the ~irculation of copies oflists and
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~e~criptions of looted art'to museums, art dealers, auction houses and other art facilities,'a'lqng
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with a request that they cooperate by reporting any suspicious cases to the nearest U.S. District
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. Attorney or to the'~ffice of Eco!lomic Security at the
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St~te Department. 2o .:
There is no indication that any of the foregoing proposals was acted upon. The
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. ' Roierts Commissiori, however, i~ 1 ~~ 7 did ,~end a ,fe,quest to muse~ms,.
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antiques ~,ealers and
auction houses stating that there were numerous reports of art objects being offered for sale and
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re4uested' that the Co~ission b~ info~ed of all such offers with as much specifi6 information . .
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as possible. It is clearly stated in this letter that: "[i]t is, of course, obvious that no clear title can
beipassed on objects that have been looted tTom prtblic or
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pri~ate collections abroad'.''ll
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19 Dept. of State, Memoranda of Conversations of Feb. 12,1'948, Lot File 62D-4, Entry 3104A, Record Group 59,
. RetardS Ma~ntain~d by the Fine Arts and Monuments Adviser [sic] 1945-61 ("Ardeiia Hall Collection"), B~x 1.
Stimson, supra n.15 at 10-11.
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21 Cited in Ardelia Hall,
Dept, OfState Bulletin ....
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Why was Treasury Decision 51072 repealed? According to a letter of June 2?,
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1946 from the Assistant Chief, Division of Economic Security Controls to the Director of Foreign
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Fu1ds Control of the Treasury Department: "Relevant facts are: that the' Roberts Gommission will
te~inate on June 30, that the departrrlent of State lacks appr~priations or: personnel for clearing a
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ma~s of applications for release from customs custody, that no Axis-owned or looted art objects
ha~e been disco.veredfrom the operation of the controls,and thatthe volume oflegitimate imports
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oftrt objects is increasing."22 One Qfthe problems seems to have been that, although the
Tr~~SUry Department had made three or four seizures oflooted cultur~l property objects, there was
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no provision for an agency bywhich they could be transferred or restituted to their countries of
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ori~n.23 '
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The post war record of the restitution of works, of art recovered in the United States
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bel~ies the assumption made in 1946. From the official records only -~ .
which are by no means
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c,otbplete -- 61 restitutions were effected between 1949 and 1960, largely through voluntary
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retilms facilitated by the Bureau ofCustoms. 24 Much ofthe effort to restore art .objects to their
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oJners was the result of one dedicated woman, Ardelia Hall, whow'as a MFAA officer and from
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19f4 until 1964 worked· in the State Department. She was responsible for the
settlem~nt ofsonie .
661cases during her tenure there .. Since 1964 there have been numerous restitUtions, some through.
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22 ~ot File 62D-4, Entry 31 04A, Record Group 59, Records Maintained by the Fine Arts and Monumen~ Adviser'
[sic] 1945-61 ("Ardelia Hall,Collection"), Box. t'.
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23 Office memorandum of a telephone conversation between Ralph Stimso~ and Frank Russell, July 18, '1946; Record .
Gr9up 59, Records Maintained by the Fine Arts and Monuments Adviser [sic] 1945-61 (':Ardelia Hall Collection':), '.
Box 1.
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24 Record Group 59, Records Maintained by the Fine Arts and Monuments Adviser [sic] 1945-6 i("Ardelia Hall
Cohection"), Boxes 1 '.
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the /agency of the State Departrnent25 ,through law suits26 and many through voluntary returns. 27
Cu~ent cases in litigation or in the process of settleme~~ negotiations.in~lude the Flemi;h portrait
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, cla~med by Prince Czartoryski-Borbon in the possession of a Cornell professor and the Monet (?)
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cla~med
by the heirs of ---------. The resurgence of claims during the past decade attests to the
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fail:~re of the efforts~ade immediately following the war, perhaps due ~6'the rescindi~g of,
TrJa~Ury De~ision 5101'2.: ''
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25 See Ely Maurer, The Role ofthe State department Regarding National and Private Claims for the Restitution of
Stdlen Cultural Property, The Sp~ils of War, ed. Elizabeth Simpson (New York, 1997) 142-44. '
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26 See e.g., Menzel v. List, 267 N.Y.S.2d 804 (Sup. Ct. 1966); Kunstsammlungen zuWeimar v. Elicofon, 536 F.
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Supp. 829 (S.D.N.Y. 1981); affd 678 F.2d 1150 (2d Cir.1982); Goodman and Rosenberg cases to be added.
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27 ~ong the best publicized are the return of the Quedlinburg Treasure by the h~irs of 10eTom Meador (cites to be
added) and the return of the Kassel miniatures by Thomas B. Chatalbash in 1998 (cites to be added).
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�.1 Belgium: 1942 for both confiscation of assets and start of round-ups/deportation; .'
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. , Czechosiovakia: because of the split-up of the country in 1938, a decision needs to be
made whether to treat it as a whole andselect dates that cover, initially oilly parts, or
. whether to deal with the parts separately. First anti-Jewish measu~es were introduced in
Slovakia from March 14, 1~39 after it was given independence; in the second half of
1939 aryanization oflarge enterprises began; implementation of the full Nazi measures
. dates from the Salzburg conference of July 28, 1940. The date fodoss of power of '
disposition over financial assets thus could be 1939 or 1940; loss of freedom of
movement started with the break-up of the country and the adoption ofthe policy of
forced emigration; including expellation to the territories annexed by Hungary.
Negotiations with the Germans to start large-scale deportation began in the fall of 1941
and started in 1942.
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In the Protectorate (Czech lands) forcederriigration started in October,1939; mass
deportations started in 1941 with the adoption of the Nuremberg laws.
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I Netherlands: 1941 for blocking ~f accounts; 1942 for internment;
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France: 1941 for round-ups;
Italy: 1943 for both;
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Hungary: First anti-Jewish measures in 1938, but not really effective until 1942 and later with
respect to middle-class in Budapest; labor camp round-ups earlier but first ones mainly in the
de-Jewing;
annexed territories; German occupation 1944 and Eichmann in charge of . , '
;.
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Romania: Economic I?ws 1938-40; June 1941 deportations start with massacre of Jassy;
Poland: here one would accept occupation date - or earlier - first set of new anti-Jewish
legislation passed in .1936,
.1
�FAX COVERSHEET
THIS IS A TRANSMITTAL OF
PAGES INCLUDING THIS SHEET.
PLEASE CALL IF INCOMPLETE.
To: David Epstein
",
Fax #:'2025146584
Date':, 5-2-00
From: Helen B. Junz
Fax#: 202-371-5678
Tel#: 202-371-6400 Ext. 458
Dear David: Please find attached the Fact Sheet on the Presidential ' Commission you asked for.
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I am still investigating whether we have a general waiver of any privacy act restrictions or not.
Until I know, I will hold the letter asking forthe release ofany claims files.
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Tpanks for: your help,
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With best regards,
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Helen B. Junz
,
director of research for non-gold financial assets
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October 4, 1999
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To:.G. Sofer
From: H.B. Junz
Re: Draft paras. on the activities of the economic/fmancial assets group for Committee chairman's report to .
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the full Commission October 14, 1999.·
Please find attached, as you requested, two draft paras. fot the use of the Chairman of the Non-gold Assets·
Committee in reporting to the full Commission. Not sUrprisingly, they are not very different from those
. included in Ken's monthly report.
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I assume that we will bring a disk and laptop to the meeting so that we can amend this material to reflect
views expressed during the Complittee discussion. Alternatively, we can of course make hand corrections .
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October\4, 1999
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Draft·paras.on the activities of the economic/financial assets group for Committee chainnan's
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report to the full Commission October 14, 1999.
1. The work of the non-gold asset~ team, in the first inst~ce, is concentrating on the assets that
came under the control of the US military as they swept through Europe. We are seeking
'documentation both on the policies that guide~ confiscation, the handling and the eventual
disposition of such assets as well as on the magnitudes involved. Accordingly, the focus here is
on assets located abroad and in the first round released to entities abroad.
,,'
The richest documentation found so far covers real property. It is important in its own right as
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it sets the stage for the r:estitutibn laws within Gennany, but it also demonstrates neatly policy
motivation, implementation and problems of the military government. A dominant strain is the
fact that the inilitary had little taste to act as long-tenn property managers. This combined with
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the obvious need to employ local personnel led to numerous breakdowns in the control process,
all to the detriment of the original owners. They range from lapses in taking control to erroneous
early release of controlled property to acquisitions of property by publicly appointed managers
(yerwalter) often at apparent non-market prices (whiffs of the aryanization process?)
On currencies,the record of confiscation by the US Anny in Geiman~ and Austria is '
relatively clear, 'that of disposition less' so: restitution to national governments and to the
International Refugee Orgariization (IRO or its functional predecess~r PCIRO) is reasonabie well
document~d, restitution to DPs so far cannot be traced. With respect to sec,;!rities, documentation .
is intentionally sparse regarding values and quality, although there was comprehensive restitution
to national governments ofthe United Nations (the 18 countries that signed the 1943 Allied
Declaration regarding transfer of property under duress).
2. On the vesting of trademarks, patents and copyrights under the Trading with the Enemy Act,
the spade work on the relevant laws and treaties is in process.
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HELEN B. JUNZ
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lTune 23,2000
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Ma{gretta Kennedy
PCHA
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901 15th Street NW, SUIte 350
~ashington, DC 20005
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Expenses New York, June 13-16
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Approved dates June 13 through 16
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Hotel Bill
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iTips hotel
, 'Airport transfers:
II' London L 22=
JFK
$ 583.39, incl. one meal 'at $26.62, all tel. calls business
20.00
$ 34.10
40.00
24.00
18.00
14.00
9.00
La Guardia
National'
"[Tips airports
.In-town transportati9n
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l have not included expenses for meals as I assume there will be a per diem. If that is not so, please let me
know.
;Vou will see·a yellow boarding pass for the Delta Shuttle rather than the usualstub- this was so because
~hey had cancelled many flights and they never gave us the stubs back.
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,
~3 Warwick Square, London SWIV 2AB
;England
Phone/fax 44 (0) 2076309727
e-mail jUnz@hbJ.sonnet.co.uk
�[Ente~ Draft's Author's Name Here]
DRAFT - December 5, 2000
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Presidential Advisory Commission on Holocaust Assets
Description
An account of the resource
<p>The Presidential Advisory Commission on Holocaust Assets in the United States, formed in 1998, was charged with investigating what happened to the assets of victims of the Holocaust that ended up in the possession of the United States Federal government. The final report of the Commission, <a href="http://govinfo.library.unt.edu/pcha/PlunderRestitution.html/html/Home_Contents.html"> “Plunder and Restitution: Findings and Recommendations of the Presidential Advisory Commission on Holocaust Assets in the United States and Staff Report"</a> was submitted to President Clinton in December 2000.</p>
<p>Chairman - Edgar Bronfman<br /> Executive Director - Kenneth Klothen</p>
<p>The collection consists of 19 series. The first fifteen series of the collection are composed mostly of photocopied federal records. These records were reproduced at the National Archives and Records Administration by commission members for their research. The records relate to Holocaust assets created between the mid 1930’s and early 1950’s by a variety of U. S. Government agencies and foreign sources.</p>
<p>Subseries:<br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Art+and+Cultural+Property+">Art and Cultural Property</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Gold+">Gold</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Gold+Team+Review+Form+Binders+">Gold Team Review Form Binders</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Art+and+Cultural+Property+and+%E2%80%9COthers%E2%80%9D+Review+Form+Binders">Art and Cultural Property and “Others” Review Form Binders</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Non-Gold+Financial+Assets+Review+Form+Binders">Non-Gold Financial Assets Review Form Binders</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=History+Associates+Binder+">History Associates Binder</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Non-Gold+Financial+Assets+Review+Form+Binders+%282%29">Non-Gold Financial Assets Review Form Binders (2)</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Financial+Assets+Documents">Financial Assets Documents</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=RG+84%2C+Foreign+Service+Posts+of+the+State+Department%E2%80%94Turkey">RG 84, Foreign Service Posts of the State Department—Turkey</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Financial+Assets+Documents">Financial Assets Documents</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?search=&advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=%5BJewish+Restitution+Successor+Organization+%28JRSO%29%2C+Oral+Histories%5D&range=&collection=20&type=&user=&tags=&public=&featured=&exhibit=&submit_search=Search+for+items">[Jewish Restitution Successor Organization (JRSO), Oral Histories]</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=PCHA+Secondary+Sources">PCHA Secondary Sources</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Researcher+Notes">Researcher Notes</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Unnumbered+Documents+from+Archives+II+and+Various+Notes">Unnumbered Documents from Archives II and Various Notes</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=RG+260%2C+Finance+Inventory+Forms">RG 260, Finance Inventory Forms</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Reparations">Reparations</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Chase+National+Bank">Chase National Bank</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Administrative+Files">Administrative Files</a><br /><a href="http://clinton.presidentiallibraries.us/items/browse?advanced%5B0%5D%5Belement_id%5D=39&advanced%5B0%5D%5Btype%5D=is+exactly&advanced%5B0%5D%5Bterms%5D=Art+%26+Cultural+Property+Theft">Art & Cultural Property Theft</a></p>
<p>Topics covered by these records include the recovery of confiscated art and cultural property; the reparation of gold and other financial assets; and the investigation of events surrounding capture of the Hungarian Gold Train at the close of World War II. These files contain memoranda, correspondence, inventories, reports, and secondary source material related to the final disposition of art and cultural property, gold, and other financial assets confiscated during the Holocaust.</p>
<p>For more information concerning this collection consult the<a href="http://clinton.presidentiallibraries.us/items/show/35992"> finding aid</a>.</p>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
An entity responsible for making the resource available
Clinton Presidential Library & Museum
Is Part Of
A related resource in which the described resource is physically or logically included.
<a href="http://clinton.presidentiallibraries.us/items/show/35992" target="_blank">Collection Finding Aid</a>
<a href="https://catalog.archives.gov/id/1040718" target="_blank">National Archives Catalog Description</a>
Extent
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2954 folders
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Original Format
The type of object, such as painting, sculpture, paper, photo, and additional data
Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
[Helen's Files #4] [1]
Creator
An entity primarily responsible for making the resource
Presidential Advisory Commission on Holocaust Assets in the United States
Art & Cultural Property Theft
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 184
<a href="http://clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/Holocaust-Assets.pdf" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/description/6997222" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
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Adobe Acrobat Document
Publisher
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Clinton Presidential Library & Museum
Medium
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Reproduction-Reference
Date Created
Date of creation of the resource.
6/24/2013
Source
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6997222-helens-files-#-4-1
6997222