United States: A Proposed Uniform Statute Of Limitations For Nazi-Plundered Art And Cultural Property

No one knows exactly how much art and cultural property the Nazis stole during what Agnes Peresztegi has called "the greatest art theft in history." According to the Holocaust-Era Looted Art: A World-Wide Preliminary Overview, presented at the 2009 Holocaust Era Assets Conference in Prague, a "very considerable amount of looted movable artwork...and [cultural] property" held both privately and publicly remains to be recovered more than seventy years later. That same overview found that the United States had by that time only made substantial (not major) progress towards implementing the 1998 Washington Conference Principles on Nazi-Confiscated Art and subsequent resolutions. That remains true today. In short, more can be done.

The Holocaust Expropriated Art Recovery Act of 2016

On April 7, 2016, Senators Charles Schumer, John Cornyn, Ted Cruz and Richard Blumenthal introduced the Holocaust Expropriated Art Recovery Act of 2016, S. 2763 (the "HEAR Act") to "help facilitate the return of artwork stolen by Nazis during the Holocaust to their rightful owners or heirs." Read Sen. Schumer's press release here. The HEAR Act would allow civil claims or causes of action to recover art or cultural property unlawfully lost during the Nazi era or damages caused by the taking or detaining of such art or cultural property to be commenced, nationwide, within six years of the claimant's actual discovery of (1) the identity and location of the art or cultural property and (2) information or facts sufficient to indicate that the claimant has a claim for a possessory interest in that art or cultural property. This new six-year statute of limitations would preempt any other statutes of limitation or passage-of-time defenses and allow cases to be heard on their merits that might otherwise be barred by procedural hurdles.

The HEAR Act does not create a new cause of action and will not apply retroactively – it will apply to claims or actions pending on the date of its enactment or filed after enactment but before 2027. Such claims or actions may include those: (1) that were dismissed before enactment of the Act based on expiration of a federal or state statute of limitations, laches or any other passage-of-time defense; and (2) in which final judgment has not been entered. The Act defines "persecution during the Nazi Era" as "any persecution by the Nazis or their allies during the period from January 1, 1933, to December 31, 1945, that was based on race, ethnicity, or religion," and "unlawfully lost" as "includ[ing] any theft, seizure, forced sale, sale under duress, or any other loss of an artwork or cultural property that would not have occurred absent persecution during the Nazi era." The entire bill is available here.

Testimony in Support of the HEAR Act and Its Possible Implications

On June 7, 2016, the Senate Judiciary Subcommittee on Constitution, Civil Rights and Human Rights heard testimony from Senator Chuck Grassley, former Ambassador Ronald S. Lauder, Dame Helen Mirren, Monica Dugot, Agnes Peresztegi and Simon Goodman in support of the Act.

Mr. Goodman, a plaintiff in the first Nazi looting case settled in the United States, continues to search for over 1,000 pieces of art and cultural property taken from his family during the Nazi era. Had Goodman v. Searle gone to trial, the applicable statute of limitations – New York's demand-and-refusal rule or Illinois' discovery rule that expires after five years – would have been an issue for the court. In his Senate testimony, Goodman also discussed the digitization of Nazi records, a step that will help him – and many other potential claimants – locate art and cultural property taken during the Nazi era. For example, in April 2016, Goodman was able to use Dutch online archives to locate a painting removed from his family's home in 1940.

According to Ms. Peresztegi's testimony, the six-year rule proposed in this bill was the product of a decade of discussions among museums, art professionals and claimant representatives. This consortium agreed that six years is long enough to facilitate negotiation and amicable resolution of restitution claims, and encourage museums to complete the provenance of their holdings and actively engage in restitution of Nazi-plundered art and cultural property. However, most United States museums are nonprofits without the research resources of, for instance, auction houses to thoroughly examine the provenance of those holdings – are their available resources up to this task? (For a summary of auction house resources, please see Ms. Dugot's description of Christie's provenance research abilities.)

The HEAR Act aims to increase the number of claims brought in the United States by eliminating the need to consider time-based procedural defenses on a state-by-state basis. Claimants and their counsel will only have to worry about one time-based defense: has it been six years since the claimant actually discovered the art or cultural property's identity and location? The HEAR Act, coupled with newly available digital records, will also facilitate the return of art and cultural property to families that owned them prior to the Nazi era – and what those claimants do with the art or cultural property on its return will have an impact on the art industry. Museums may be able to borrow rarely-seen works and share them with the public, auction houses may see an influx in consignments, and collectors may have once-in-a-lifetime opportunities.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.