By Steven Kern

This article was published in Museum News March/April 2006

On Feb. 18, 2000, the San Diego Museum of Art (SDMA) received a claim on behalf of the heirs of Jakob and Rosa Oppenheimer, Jewish owners of the Galerie van Diemen in Berlin, for the return of Allegory of Eternity, an oil sketch by Peter Paul Rubens.1 An important work related to a series of tapestries at the convent of the Descalzes Reales in Madrid, the Rubens oil sketch has been in the museum’s collection since 1947.2

The claim was filed by a Paris lawyer representing Oppenheimer heirs: one surviving daughter in Argentina, a grandchild and great-grandchild in France, and grandchildren in the United States (Florida and New Jersey). The lawyer informed the museum that Mr. and Mrs. Oppenheimer, the Jewish owners of a corporation of Berlin galleries, were forced by the Nazi government in 1935 "to throw on the market their jewelry, paintings, and other fine art objects." She asserted that the museum had bought the Rubens oil sketch "from the person or the successors of the person who spoliated [her] clients" and that this could be confirmed by the German administrations of restitution. The museum was requested to restitute the painting in conformity with the "Berlin declaration" of the German government, the Länder (German states), and the municipalities, in accordance with the 1998 Washington Conference on Holocaust-Era Assets.

The claim arrived just as SDMA was coming up to speed in the area of Nazi-era provenance research, which in 2000 was changing from an interesting, if daunting, topic into a new profession-wide initiative. A new position had only just been added in the Department of European art, an assistant curator whose workload eventually would be dominated by provenance work—75 percent provenance research and 25 percent other duties.

Having received the claim, the very first thing SDMA did was to confirm the painting in question was, indeed, the work in its collection, which it clearly was. Its 1935 sale at the Graupe auction house in Berlin, for example, was documented in our own records. The museum also responded with a request "for information from the claimant in order to assist in determining the provenance of the object." Specifically, the museum requested evidence of ownership along with evidence of forced sale without appropriate compensation or restitution. Further, the museum requested evidence that the museum had purchased the painting from the "person or successors to the person who spoliated" the Oppenheimers, a claim apparently refuted by museum documentation.

In the meantime, the museum initiated its own research, reviewing the object file and correspondence and completing a physical examination of the painting’s back. This yielded no new information. The European department also began a crash course in Nazi persecution of the Jews between 1933 and 1935, forced sales in Berlin, the Galerie van Diemen, and the Oppenheimers.

At the outset of research on the claim, the provenance listing for the oil sketch included several significant gaps and problematic inconsistencies. Our original provenance read as follows:

Julius Held’s entry in the critical catalogue3 added two additional bits of information: one, "in the possession of a printseller for sale, 1835"; and two, "liquidation sale" Van Diemen and Co., Berlin.

What exactly were the questions, gaps, and concerns? Several are obvious. For example, where was the painting between the Stroganoff Sale in 1931 and the van Diemen sale in 1935? When and from whom had the Galerie van Diemen acquired the painting? What were the implications of a "liquidation sale" in Berlin in 1935, before Kristalnacht and the notorious, so-called "Jew sales" a couple of years later? Who benefited from the proceeds of the sale? Were all liquidations forced? While irrelevant to the claim, how and when did the painting get to the United States? Finally, prior to its time in Germany the painting appeared to have been nationalized by the Soviets and then sold in Berlin, adding another interesting layer to its history.

In 2001, still waiting for a response from the claimant, the museum continued its research using local and national resources such as the Getty Research Institute and the Frick Art Library. We also contacted colleagues for advice on the chance that someone might be able to contribute some insight into the situation. The Getty Research Institute was able to provide a copy of the Graupe catalogue for the van Diemen liquidation sale. The sale was an impressive one, indeed, covering scores of Old Masters, including several by Rubens; lot number 51 was the San Diego Allegory. With so many works liquidated in one sale, it was puzzling that more information wasn’t immediately available about the Galerie van Diemen and the Oppenheimers. It also seemed strange that there was no word of other claims in the museum community concerning this gallery, family, and sale.

We gained deeper knowledge of issues surrounding Nazi-era provenance during sessions at the AAM annual meeting in St. Louis in 2001, when AAM’s Recommended Procedures for Providing Information to the Public about Objects Transferred in Europe during the Nazi Era were first introduced. Making its debut at that same meeting was The AAM Guide to Provenance Research by Nancy H. Yeide, Konstantin Akinsha, and Amy L. Walsh. The sessions and the book gave us insight into the procedures and policies we needed to have in place at the museum. They also provided resources to accelerate research. Finally, the Guide to Provenance Research provided our first solid information on van Diemen and Co. Interestingly, the gallery had branches in Amsterdam and New York, where in the 1930s it had become affiliated with Karl Lilienfeld, which in turn later was acquired by Achim Moeller. Unfortunately, Achim Moeller does not have the old van Diemen files. There seemed to be no trace of the van Diemen files in the United States or Europe.

Now we knew a little about van Diemen and Co., but still almost nothing about the Oppenheimers. Then at the first AAM Provenance Research Seminar, held at the National Archives and Records Administration-II in College Park, Md., in December 2001, we finally connected with a colleague who had heard of the Oppenheimers and their connection to the Galerie van Diemen. This illustrates the importance of networking among provenance researchers. She directed us to a report prepared by a German researcher in response to a claim for two works by Rubens that appeared in the same liquidation sale as our painting, one in Karlsruhe and the other in Stuttgart.4

This report gave the museum its first understanding of who Jakob and Rosa Oppenheimer were. In a nutshell, they were among the most successful of Berlin’s dealers, running the Margarf & Co., with its affiliates Dr. Benedict and Co., Dr. Otto Burchard & Co., Altkunst-Antiquitäten, and van Diemen and Co. Accused by the Nazis as being "Jewish capitalists," they fled on April 1, 1933, to avoid being apprehended by the Gestapo. Their businesses were eventually closed, and their stock liquidated. Both Oppenheimers ultimately lost their lives. Their family splintered.

More than two years passed before a communication from the claimants arrived in response to our October 2000 request for additional information. On Dec. 14, 2002, the Paris lawyer renewed her request for restitution of the painting in a new communication. The substance of the claim, however, was now very different. No longer was she simply representing the Oppenheimer estate on behalf of the heirs and requesting that the SDMA painting be returned to them. She now represented van Diemen and Co. as duly appointed liquidator. She requested the restitution of the painting to the company for the benefit of the stockholders—the Oppenheimer heirs listed in the first letter. The delay in responding to our request for information, she explained, was her desire "to create a precedent."

In fact she had two to bring forward. One was an agreement with the German government for the return of Adriaen van de Velde’s Landscape with Shepherds, Horse, Cow and Sheep, on deposit in a German provincial museum. The legal basis for this restitution was the 1991 Property Settlement Law and the 1999 Joint Declaration, covered elsewhere by Harald König. The second precedent was an agreement with "one of the most important American cultural institutions on the East Coast." Whereas the museum was provided with full citation of the German restitution, the agreement with the "important American cultural institution" was confidential—not a big help to us in determining how to resolve our case.

While the Paris attorney’s first letter had been little more than a half-page with only two attachments, the second was two-and-one-half pages, with 17 attachments. Unfortunately, several were incomplete, virtually all were in German, and many were rendered illegible by the fax transmission. New copies, translations, and clarification of ideas were requested. For the following year, our legal counsel was engaged in regular correspondence—at times a bit adversarial—with Paris, attempting to explain the balance between collections stewardship, fiduciary responsibility, and the public trust, all legal and moral issues relating to Nazi-era provenance. As we stated in our very first response, "It is our intent and desire to resolve matters such as this in an equitable, appropriate, and mutually agreeable manner. We cannot do so without the facts." We were dogged by lack of proof of ownership: no files, no receipts. Did the Oppenheimers share interest in the painting with someone else? Was it on consignment? What was the relationship between the Berlin gallery and its branches, especially the one in New York? These questions took us back to the mystery of the painting’s whereabouts between 1931 and the liquidation sale in 1935.

Soon after the receipt of the second letter, the museum decided to engage outside legal counsel (until then the museum had been represented pro bono by the law firm of our board president). Thad Stauber, then counsel at the Los Angeles County Museum of Art, came to our museum to advise us. He was not able to represent SDMA given his role in Los Angeles, but he recommended Tom Kline of Andrews Furth in Washington, D.C., who had worked on the case of the Art Institute of Chicago’s Degas Landscape with Smokestacks. Tom consented to work with us, the first time he took a case representing an American museum rather than claimants. We also contacted Laurie Stein, as we were anxious to engage the services of a seasoned provenance researcher with experience in Germany. She was unable to work with us, but suggested Ilse von zur Mühlen, who was working with the Bayrische Staatsgemäldesammlungen. Through all these referrals, we were able to assemble an excellent team to work toward resolution of the claim.

Ilse did brilliant work, consulting many sources for us and helping us to build a clearer picture of the Oppenheimers and their affairs. She also tracked down all of our references in an attempt to flesh out the painting’s history of ownership, especially the details of the van Diemen acquisition of the Rubens. She spent time in Berlin at the Restitution Offices, the Office of Commerce, the Bundesarchiv, the Berlin Document Center, and consulted the Reichskulturkammer records. She also surveyed the German literature for information on the Oppenheimers, van Diemen, and its gallery stock.

As a result of this work, by November 2002 the provenance record for the Rubens oil sketch had changed radically:

In November we agreed to go to Berlin to review confidential files in the Berlin LAROV10 and the Oberfinanzdirektion. We were to be accompanied by the Paris lawyer and an Oppenheimer grandson, who would represent all of the heirs. The trip took place in January 2003. Tom Kline, SDMA provenance researcher Claudia Leos, and I met with Ilse von zur Mühlen to review all records, documents, and outstanding questions. After three days of meetings with the Paris lawyer and her Berlin colleague (the heir had not come), we had a full understanding of the Oppenheimers, including their persecution and flight from Germany and attempts to continue operations from France and Switzerland, the closure and liquidation of their Berlin galleries (including van Diemen), Jakob’s 1941 death in Nice following internment there, and Rosa’s 1943 deportation, first to the concentration camp at Drancy and then in the 61st transport from France to Auschwitz, where she was killed on Nov. 2.

We knew, too, that the liquidation sale was well attended and that even though the prices were high, they still only represented about half of the works’ estimated value. We knew that neither the Oppenheimers nor their heirs had benefited from the revenues of the 1935 sale; we knew that Jewish flight and property taxes had absorbed all assets. We knew that restitution paid to the heirs in 1957 had been the maximum allowed—75,000 marks—for an estimated value of approximately 500,000 marks, and that in the 2001 settlement with the German government, the restitution was not required to be paid back. We also knew that there was no evidence of further restitution or settlement for the San Diego painting.

But there were still questions: what exactly was the nature of the Oppenheimer dealings after their flight from Germany? What was the nature of the relationship of Oppenheimer with van Diemen, New York? How had the painting become part of the gallery stock or was it even part of the gallery stock? What are the implications of a painting purchased by a Jewish Berlin dealer from a Jewish liquidation sale?

We were convinced, however, that, while interesting, further research would have revealed little more relevant to this claim. The cost for additional research seemed unnecessary. Litigation was to be avoided for two reasons: cost and risk. Besides, if we entered into litigation, under whose law would the case be tried? (In California, we learned, the German laws probably would have applied.) Rather than litigate, we negotiated a settlement with the Paris lawyer and her Berlin colleague that would allow us to retain ownership of the painting. In the final agreement, which was accepted as just and fair by all parties, only the sum of the settlement is confidential. We wanted the rest of the story to remain public. It is important that we share the story and our process with colleagues, knowing that there will likely be future claims from the same sale and wishing that we had had the benefit of more information sooner.

The settlement was unanimously approved by the SDMA board of trustees at their March 2004 meeting and the painting’s credit line was permanently changed: Gift of Anne R. and Amy Putnam, 1947; funds for Nazi-era restitution through settlement to Galerie van Diemen, Berlin, provided by the estate of Walter Fitch III.

References

Steven Kern is curator of European art at the San Diego Museum of Art. This essay is featured in AAM’s new book,Vitalizing Memory: International Perspectives on Provenance Research.