By Ethan Ashley.
The decision to reject the appeal of an American couple rendered by the Paris court of appeals this past week represents the latest chapter in interpreting the laws surrounding art restitution, and illustrates the problems of blurry provenance and misconducted investigations.
The case involves the 1887 painting by French impressionist Camille Pissarro entitled La Cueillette des Pois or equally La Récolte des Pois (The Pea Harvest). The painting was seized by the French authorities in May of 2017 from the Musée Marmottan Monet, consigned at the Beaux-Arts Academy for the remainder of the trial, and subsequently restituted in November 2017 to the heirs of Simon Bauer (see our previous article on French art restitution law here).
Simon Bauer was a well-known French-Jewish art collector at the time of the Second World War. His collection, which included multiple works by Morisot, Sisley, as well as Pissarro, was confiscated in 1943. In 1944, Bauer was taken to Drancy internment camp in the suburbs of Paris and managed to escape deportation to Auschwitz. Upon his return to Paris, Bauer began efforts to reclaim his collection before his death on January, 1st 1947. Since Bauer’s death, his family heirs, in particular his grandson Jean-Jacques, have continued the search for his collection.
Bruce and Robbi Toll, who oversee a luxury real-estate empire in Montgomery County, Pennsylvania, bought the painting from Christie’s in New York in the early 1990s, and lent the gouache to the museum for an exhibition in November of 2017. Following the seizure of the painting, the couple claimed that they were unaware of its contentious past and subsequently filed an appeal before the Paris Court of Appeals this past June. The controversy surrounding La Cueillette sheds new light onto the significance of provenance research and the frameworks under which auction houses conduct such research.
The Legal Battle
The confirmation of the restitution of La Cueillette revises the scope of the April 1945 French Ordonnance which has served as the principal piece of legislation for looted art cases in France. The 1945 decree recognizes as null and void any transaction of Nazi-looted artwork, regardless of whether buyers purchased a work in good faith. In comparison to a case that took place in 2002 in the United States pertaining to a set of stolen manuscripts that belonged to Alphonse Kann that were subsequently restituted to the Wildensteins, the U.S. court interpreted the scope of the 1945 Ordonnance very narrowly, which resulted in the Kann Estate losing the case.
However, the French court’s decision regarding La Cueillette substantially widens the scope of the 1945 Ordonnance by recognizing the Christie’s sale as void ab initio even if the purchaser was acting in good faith. Following the pledge of French Prime Minister Edouard Philippe to “do better” when it comes stolen artwork, this decision represents a significant change in the attitude of the French government towards any future legal disputes surrounding stolen Nazi-era artworks. On the same day the Paris Court of Appeals confirmed the restitution of the Pissarro, the government also issued a decree designed to reorganize and consolidate the Commission pour l’Indemnisation des Victimes de Spoliations (“CIVS”), the committee in charge of repairing the wrongs caused by Nazi-era looting, especially through provenance research.
Assessing the Gaps
The provenance of Pissarro’s gouache demonstrates the framework of pre-Washington Conference on Holocaust-Era Assets research. By investigating the provenance and literature used by Christie’s in 1995, we can shed new light onto this unique controversy and highlight what arguments can and cannot be made in the legal world. Beginning from the origin, namely the artist, the first mention of the painting changing hands from Camille Pissarro is found in the catalogue raisonné written by L.R. Pissarro and Lionello Venturi in 1939. Theo Van Gogh (1857-1891), a famous art collector and brother to Vincent Van Gogh, wrote to Pissarro in September 1887 offering him 300 francs for his gouache La Cueillette.
It has been established that the painting then found its way into the hands of Paul Rosenberg (1881-1959), the acclaimed French art dealer and editor of the 1939 catalogue raisonné, sometime before 1930. However, in 1927, La Cueillette was included in a sale that took place at the Hôtel Drouot in Paris on December 3rd. Upon examining the catalogue from this sale at the Frick Art Reference Library in New York, one can clearly distinguish handwritten notes that read “Geo Bernheim” next to entry and “Mme. Desché” indicated on the front cover. These handwritten notes help explain the origin of two of the entries included in Christie’s 1995 provenance which read: “Mme. Desché, Paris” and “Georges Bernheim, Paris.” Thus, it would appear that the painting was included in the collection of Mme. Desché at the time of the sale and subsequently sold to Georges Bernheim.
However, these handwritten notes (most likely written by someone present at the sale) do not necessarily confirm that the gouache changed hands at this 1927 sale. The identity of these figures is also ambiguous. While Georges Bernheim was a well respected art collector at the time, his relationship with stolen works is unclear. Furthermore, three years later, in 1930, La Cueillette was included in an exhibition of Camille Pissarro’s paintings at the Musée de l’Orangerie (Centenaire de la naissance de Camille Pissarro). The painting is clearly denoted under the selection of gouaches as part of Simon Bauer’s collection with no mention of Georges Bernheim.
If we place this information in dialogue with the provenance provided by Christie’s at the time of the 1995 sale, we can explore the possibility of a gap in the information provided by the auction house. Christie’s provenance reads as the following:
Paul Rosenberg, Paris.
Simon Bauer, Paris.
Mme. Desché, Paris (?); sale, Hotel Drouot, Paris Dec. 3, 1927, lot 34 (illustrated).
Georges Bernheim, Paris (acquired at the above sale).
Anon. sale, Sotheby & Co., London, June 22 1966, lot 42.
Acquired by the late owner at the above sale.
When we consider the 1930 exhibition catalogue, there appears to be a mistake in placing the entries that read “Mme. Desché” and “Georges Bernheim” after “Simon Bauer.” The 1930 catalogue clearly demonstrates the painting as in the collection of Simon Bauer. Therefore, it either changed hands back to Simon Bauer between 1927 and 1930 or it was never sold to Georges Bernheim in the first place. This argument is furthered by the 1939 catalogue raisonné (Figure 1) which acknowledges the 1927 Hôtel Drouot sale, but makes no mention of either “Mme. Desché” or “Georges Bernheim” in the provenance. The only figures who appear in the provenance are Paul Rosenberg and Simon Bauer. The “Mme. Desché” and “Georges Bernheim” entries are unique to Christie’s provenance. The catalogue from the 1966 Sotheby & Co. sale furthers this argument.
Following the war, in 1947 La Cueillette was placed on the “Répertoire des biens spoliés (Volume II)”, a list published between 1947 and 1949 that presents all information regarding stolen property in France including pieces of art. From that point on, the painting did not reappear until 1965 when it was seized in France, as the Art Newspaper article notes, before being transferred to London where it went to auction at an anonymous sale at Sotheby & Co in 1966. Upon examining the catalogue from this auction, one can clearly observe the provenance as listing only Paul Rosenberg and Simon Bauer. In fact, there is no mention of the 1927 sale at the Hôtel Drouot in this 1966 sale catalogue. From the above sources, all of which are listed by Christie’s in the 1995 sale provenance, it would appear that the painting did not make its way into the collection of Mme Desché or Georges Bernheim, but rather remained in the hands of Simon Bauer until the outbreak of World War II in 1939.When we take into consideration all of this information leading to the 1995 sale at Christie’s where the Toll’s purchased La Cueillette for $882,500, one may wonder as to why the “Mme. Desché” and the “Georges Bernheim” entries remained in the provenance at the 1995 sale.
The inclusion of these entries in the provenance of the 1995 sale ultimately adds distance between the possession of the painting by Simon Bauer and its appearance at the 1966 sale in London, making it less of a target for restitution efforts. Was this an intentional choice by the researchers at Christie’s? Were they trying to hide something? Although one may be attempted to point fingers at Christie’s for including these entries in the 1995 provenance, we must first acknowledge the framework under which auction houses were conducting provenance research at this time.
Pre-Washington Provenance Research
The provenance of La Cueillette that Christie’s provides for their 1995 sale demonstrates a unique conflict on provenance research frameworks between pre- and post-Washington Conference on Holocaust-Era Assets. In 1995, the framework of historical research did not include the same sensitivity towards looted artwork that exists today. Moreover, provenance researchers and scholars at auction houses such as Christie’s and Sotheby’s did not receive the same training that they do today to identify potentially stolen works. After examining the provenance of La Cueillette, one might surmise that Christie’s intentionally manufactured or included the “Mme. Desché” and “Georges Bernheim” entries in their 1995 provenance to mask the truth behind La Cueillette’s contentious past. Equally, one might argue that these entries represent an absence of academic or historical inquiry into the painting’s past. The truth is quite the opposite.
A Clash of Frameworks
The inclusion of both entries derived almost certainly from a researcher’s interpretation of the handwritten notes on the Frick Reference Library copy of the 1927 sale catalogue represents a tremendous amount of due diligence. The reality is that most researchers and provenance experts in 1995 were not looking for the signals and nuances that they are today but rather conducting research under a framework of art history to provide the most accurate and detailed account of a work’s ownership. Consequently, one cannot blame Christie’s for including both the “Mme. Desché” and “Georges Bernheim” entries in their 1995 provenance. With this in mind, this case exemplifies the conflict that is sure to resurface in the near future. Although Cédric Fischer, the lawyer for the Bauer family, has insisted that the American couple pursue Christie’s who “had all the elements for the provenance,” his argument neglects to take into account the pedagogy of provenance research at the time of the sale. While Christie’s did indeed have “all the elements for provenance,” these elements are ultimately meaningless unless synthesized under a looted art framework.
Conclusion: A Different Angle
For this reason, we must turn our attention to another looming gap in La Cueillette’s provenance, namely the 1965 seizure in Paris and the 1966 sale at Sotheby’s. According to Marc Masurovsky, founder of the Holocaust Art Restitution Project, the transfer of the painting from France to London along with its subsequent sale in 1966 signals a multitude of red flags surrounding the role of the Bauer family. The Bauer family has diligently, if not militantly, pursued restitution efforts of their family’s collection since Simon Bauer’s death in 1947. The judge’s decision to lift the seizure of La Cueillette in 1965, allowing it to fall into the possession of American dealer David Findlay, raises questions as to why the Bauer family was not as militant in this moment at they were in 2017. Did they settle for compensation? Was a deal made with the then current possessors? Or rather, was a deal made with Sotheby’s? While the art world was not nearly as conscious of the issues surrounding stolen and plundered art in 1966 as they are today, the transfer and sale of the painting between 1965 and 1966 leaves a cloud of ambiguity in this story that has not yet been resolved. It is unlikely, however, that members of the Bauer family who have diligently pursued restitution of a number of work from Simon Bauer’s collection, did not have at least some role in the 1965 exchange. Yet, the nature of this role remains unclear. As the French government aims to do a better job of handling Nazi-era stolen artworks, they will need to assess all gaps in a work’s history, even those left by the victims and their heirs.
Timeline according to the author’s provenance research:
- 1887 – La Cueillette is painted, acquired by Vincent Van Gogh then Paul Rosenberg
- 1927 – Sale at the Hotel Drouot in Paris, to George Bernheim
- 1930 – Exhibition of La Cueillette at the Musee de l’Orangerie in Paris, noted to belong in the collection of Simon Bauer
- 1943 – La Cueillette seized by Nazi authorities
- 1944 – Simon Bauer is taken to Drancy but he escapes and returns to Paris
- 1945 – French decree on looted art
- 1947 – Simon Bauer dies and La Cueillette is put on the list of looted art
- 1965 – La Cueillette is seized in Paris
- 1966 – Sale at Sotheby & Co in London, to an anonymous buyer
- 1995 – Sale at Christie’s in New York, to the Toll couple
- 1998 – Washington Conference
- March 2017 – the Toll lend La Cueillette to the Musee Marmottan in Paris
- May 2017 – La Cueillette is put in temporary consignment at the Academie des Beaux-Arts
- Nov. 2017 – The Paris lower court orders the restitution to the heirs of Simon Bauer
- Oct. 2018 – The Paris court of appeals confirms the restitution
About the Author: Ethan Ashley was a Summer Intern at the Center for Art Law and is now a Senior at Colby College in Waterville, ME, where he is a Philosophy and French Studies Double Major and Captain of the Men’s Crew Team. He has studied abroad at Université Lumière Lyon-2 and conducted a summer internship at Fondation Claude Monet in Giverny, France. Ethan is planning on pursuing Law School following his graduation from Colby in 2019.