Acting on Suspicion:

Should art dealers or auction houses be required to retain an object presented to them for inspection or sale when suspicions arise concerning the provenance of the object?

Megan Moynihan

In 1983, the Tate Gallery in London found itself on the receiving end of a most fortuitous gift – a painting by the renowned artist Edgar Degas entitled "Woman in a Tub." The donor was a Mrs. Kessler who had purchased the painting forty-five years earlier from the London art dealer Arthur Tooth and Sons. Art historians have confirmed that the dealer owned the painting for only a brief period. In 1937, the year before Mrs. Kessler’s purchase, the painting hung in an exhibition in Paris where it had been on display since 1929. It was in that year that Henri Lerolle, the painting’s original owner and a close friend of Degas, died.

At first glance, this painting appears to have a meticulous provenance. Art historians have documented its exact whereabouts from the date of its creation to the present. However, despite the appearance of an untarnished past, this painting has been flagged by the Tate Gallery as a work potentially looted by the Nazis. How is this possible?

When the painting was on display in Paris, exhibition officials traced its ownership to a "Private Collection." It is entirely plausible that Lerolle’s estate still owned the painting or alternatively, that a buyer wishing to remain anonymous purchased the piece directly from Lerolle’s heirs. A more disturbing story is that the Nazis looted the painting at the time of Lerolle’s death and sold it to a private collector who illegally loaned the piece to the Paris museum. Yet, in 1929, the Nazis were not yet in power and their systematic appropriation of artwork did not officially begin until 1937.

Thus, the real question lies in how the work traveled from the Paris exhibition in 1937 to the London gallery of Arthur Tooth and Sons in 1938. A legitimate private collector might have sold the painting directly to the gallery or, the Nazis might have seized the work and placed it on the open market for sale. Because the identity of the painting’s owner during the Nazi years is unknown, Degas’ "Woman in a Tub" remains on the Tate Gallery’s list of paintings with a questionable provenance.1

Tracing the provenance of a painting is a tricky business that requires expert sleuthing and an ability to accept the indeterminate. Art historians almost always find that a work of art’s history is filled with gaps during which both the location and the owner of the work are uncertain. One museum curator commented, "Works of art are moveable objects. They don’t stay in one place the way . . . other assets do. Documenting all the movements of works of art over a fifty-year period, even in the best circumstances, is not easy."2 Experts warn that incomplete records of ownership are not conclusive evidence of illegality. Many works of art lack a clear provenance for legitimate reasons.

For example, an owner’s desire for secrecy may raise unnecessary suspicions about a particular work. In a tradition as old as the art market, collectors have remained anonymous to maintain their privacy and safeguard their investments. To accomplish this goal, collectors frequently attribute ownership to a "Private Collection." It is quite plausible that a legitimate owner of Degas’ "Woman in a Tub" employed this tactic when loaning the painting to the Paris exhibition from 1929 to 1937.3

Given this, it seems inconceivable that art dealers and auction houses could be mandated to seize works when questions arise concerning provenance. While dealers and auction houses should research title and refrain from transfers in which provenance is clearly tainted, requiring them to seize all suspicious works would ultimately destroy the art market.

The art market thrives on a tradition of secrecy that would be greatly impaired if art dealers and auction houses were responsible for policing provenance. Dealers and auction houses have long respected sellers’ preference for anonymity and in turn, have used this to their advantage. As the art world’s middlemen, they make their money by cornering markets – a practice only possible if they are able to conceal the identity of their sources. In addition, dealers and auction houses profit from charging fees. Collectors are willing to pay big premiums for confidentiality.4 A requirement to seize suspicious works of art would clearly jeopardize this entirely legitimate code of secrecy. As the Art Dealers Association of America once lamented: "The ordinary custom in the art business is not to inquire into title . . . a duty to inquire would cripple the art business."5

Despite these lamentations, today, art dealers and auction houses are more cautious about investigating a work’s title. Under the Uniform Commercial Code, art dealers guarantee the title of the goods that they transfer and in the event that a good is deemed stolen, a buyer can hold them liable for the purchase price. Auction houses are insulated from this liability because, as agents of the seller, they owe a fiduciary duty only to such seller and not to the general public. Nonetheless, with the publicity surrounding the issue of Nazi loot, auction houses, like art dealers, are leery of transferring tainted goods. For this reason, both Sotheby’s and Christie’s have invested in the creation of the Art Loss Register – a computerized database of stolen and missing artwork.6

Dealers and auction houses’ increased attention to title should not, however, translate into an affirmative duty to seize works when their research turns suspicious. As discussed above, provenance is often indeterminate and gaps in a work’s history are not de facto evidence of illegal appropriation. In addition, while dealers and auction houses should conduct the best title search possible, in reality, they often lack the necessary expertise and manpower to thoroughly investigate provenance.

For example, it is quite common for art dealers to work independently or with very small staffs. Auction houses tend to have more employees but, similar to art dealers, their staff expertise is often limited due to a lack of professionalization within the field. Many workers do not have a background in art or art history and there is no requirement that they obtain such training prior to entering the business.7 Provenance research – when conducted thoroughly-- is both expensive and mentally grueling. Researchers must be willing to work long hours and have expert research skills. Although various groups have tried to consolidate information on stolen and missing artworks, as of today, these databases are not comprehensive.8 As one museum curator stated, "provenance research is a laborious, time-consuming, painstaking process that requires a multilingual staff and hours of investigative work."9 The majority of dealers and auction houses lack the resources necessary to confirm that a work is tainted. Given this, when clear suspicions arise, these institutions should refrain from selling a work but, they should not be required to impose a sanction as drastic as seizure.

In reality, if dealers and auction houses had the power to confiscate suspicious works, they would have few opportunities to impose such sanctions. Most sellers would be unwilling to risk impoundment and thus, the number of works offered for sale would dramatically decrease. With the hype over Nazi loot, collectors are already hoarding their goods. Sources in the art world report that collectors are "removing works from their walls and stowing them in their basements, fearful they could turn out to have questionable pasts."10 Requiring dealers and auction houses to seize suspicious works will only increase the number of pieces taken out of circulation. Most sellers lack the resources to determine the validity of a work’s title and thus, both legal and illegal works will be hidden. This is an unfortunate result considering that for every legitimate claim of Nazi-looted art, there are hundreds of claims that are invalid.11

The repercussions of a policy mandating the seizure of suspicious works are clearly great. A moratorium on selling would cripple the art market and further isolate cultural property from the public. In addition, the seizure of artworks raises practical considerations. For instance, how would impoundment cases be resolved? Would there be a standard system for adjudication? On what authority would dealers and auction houses have the power to seize personal property and would suspicious provenance be a defense against allegations of a taking? Would dealers and auction houses work independently or in conjunction with the government? And finally, what precautions would be taken to avoid both over- and under-zealous enforcement?

Tracing the provenance of a work of art is an uncertain science. Art dealers and auction houses lack the resources necessary to conduct this research with utmost accuracy. For this reason, they should not be empowered to seize works presented to them for sale or inspection when questions arise concerning provenance. Placing the power of confiscation in the hands of the private sector will cripple the art market and unnecessarily impair the transfer of legitimate works. Until there exists a cohesive, government-run database of stolen and missing artworks and a standard system for resolving claims, the best policy for impeding the transfer of Nazi-looted art remains "buyer beware."

  1. See Richard Dorment, Why museums may have been too scrupulous; A painting’s incomplete provenance does not mean it is looted, The Daily Telegraph, March 1, 2000, at 13; See also Stephanie Cuba, Stop the Clock: The Case to Suspend the Statute of Limitations on Claims for Nazi-Looted Art, 17 Cardozo Arts & Ent. L.J. 447, 470-472 (1999).

  2. Testimony of Lydel King, Director of the Frederick R. Weisman Art Museum, before the House Committee on Banking and Financial Services (February 10, 2000).

  3. See Testimony of Gilbert S. Edelson, Administrative Vice President and Counsel of the Art Dealers Association of America, before the House Committee on Banking and Financial Services, SC40 ALI-ABA 29, 82 (February 12, 1998).

  4. See Lisa J. Borodkin, The Economics of Antiquities Looting and a Proposed Legal Alternative, 95 Colum. L. Rev. 377, 386-387.

  5. John Merryman and Albert Elsen, Law, Ethics and the Visual Arts 746 (3rd ed. 1998).

  6. See Edelson, supra note 3, at 81; See also Ashton Hawkins, Richard Rothman, and David Goldstein, A Tale of Two Innocents: Creating an Equitable Balance Between the Rights of Former Owners and Good Faith Purchasers of Stolen Art, 64 Fordham L. Rev. 49, 87-88.

  7. See Merryman and Elsen, supra note 5, at 739.

  8. See Hawkins, Rothman, and Goldstein, supra note 6, at 87-90; See also Edelson, supra note 3, at 83-88.

  9. King, supra note 2.

  10. Thomas Catan, On the track of art with a troubled past: Legal wrangles over wartime loot are making provenance supremely important to buyers and sellers, Financial Times (London), November 20, 1999, at 3.

  11. See King, supra note 2.