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Univ.Prof. Dr. Ernst Bacher

Bundesdenkmalamt

Schweizerhof, Säulenstiege Hofburg

A-1010 Wien

Re: Estate

Sehr geehrter Dr. Bacher:

 Thank you so much for sending me the March 29, 1999 report of the Kommission für Provenienzforschung on the Sammlung Bloch-Bauer.  I want to congratulate you and your colleagues, especially Monika Mayer, Dr. Maren Gröning, Julia König and Dr. Robert Holzbauer for all of the excellent work that went into this report.

 Because you have very graciously invited my comments, I will list some below. However, I want to say at the outset that the Report is on the whole excellent, and that these comments are merely suggestions that might help clarify the factual and legal situation for the Beirat.

 I. Austrian Gallery -- Monika Mayer

 1. Widmungen. I am not sure I understand the distinction between the categories of "Vermächtnis 1948" and "Widmungen."  In my view, it is misleading to place Schloß Kammer am Attersee (Wasserschloß) III in the same category as Adele Bloch-Bauer I and Apfelbaum I. 

 Schloß Kammer was donated by Ferdinand Bloch-Bauer to the Austrian Gallery in 1936.  It is the only one of the seven Klimt paintings that very clearly was donated without any duress.  The only complication for this painting stems from the trade conducted by Dr. Führer in 1941, which returned the painting to the estate, and its subsequent sale to the Ucicky family in 1942. However, in my view, this painting deserves to be in a completely separate category.

 The two other paintings in the "Widmungen" category, Adele Bloch-Bauer I and Apfelbaum I, properly belong together with paintings in the "Vermächtnis" category. These two paintings left the estate under very questionable circumstances, namely the trade between Dr. Führer and Dr. Grimschitz. Perhaps my German is not good enough, but is the irony of Dr. Führer's letter to Dr. Grimschitz ("in Vollzug der szt. Letztwilligen Verfügung der Frau Adele Bloch-Bauer") clear to the readers of this Report? Adele's will asked that her husband donate the paintings "nach seinem Tode." When Dr. Führer traded the paintings in 1941, Ferdinand was alive and living in exile in Zurich. 

 Of course, it is obvious that Dr. Führer was not interested in the wishes of Ferdinand or Adele. If he was, why would he have insisted on the return of the Schloss Kammer painting, simply so he could sell it off to the Ucicky family? (One might also wonder about the propriety of a trade of two very valuable paintings in exchange for one that Dr. Grimschitz believed was the least valuable of the paintings owned by Ferdinand Bloch-Bauer.)  Dr. Führer's misdeeds resulted in his imprisonment after the war.  It goes without saying that all of the transactions he conducted were declared "null and void." Given this fact, it is quite misleading to consider Adele I and Apfelbaum in the same category as Schloss Kammer and in a different category than the rest of the paintings.

 2. Documents.  In my opinion, it would be helpful to the Beirat to include copies of all of the letters and documents which are cited in the report and in my February 18, 1999 letter (which I thank you for including with the report).  You might also wish to include my March 5 and 12 letters, as well as this letter.

 3. Seeschlange.  Mrs. Altmann pointed out that both my Feb. 18 letter and your Report cut short the very important March 9, 1948 letter from Dr. Garzarolli to Dr. Grimschitz.  You should also inform the Beirat of Dr. Garzarolli's concluding sentences:

 Jedenfalls wächst sich die Angelegenheit zu einer Seeschlange aus, da die Städtischen Sammlungen eine der Landschaften aus dem ehemaligen Besitz Bloch-Bauer gegenwärtig verwahren oder besitzen.

 

 Ich bin sehr bekümmert darüber, daß bisher alle mit Rückstellungsfragen zusammenhängended Komplexe unübersehbare Unklarheiten mit sich gebracht haben.  Meines Erachtens wird es auch im Interesse Herrn Professors liegen mir bei der Entwirrung beizustehen.  Vielleicht kommen wir dadurch noch am besten aus diesen nicht ungefährlichen Situationen heraus.

 4. Rinesch's April 11, 1948 report. You might wish to drop a footnote on Dr. Rinesch's statement ("hat die österr. Galerie zweifellos einen Rechtsanspruch, wie auf ein Legat, erworben und das Testament wird zur Erfüllung gelangen müssen") that we now believe that Dr. Rinesch's quick legal conclusion after seeing the Verlassenschaftakten on April 10, 1948 was wrong.  Indeed, it is contradicted by his later statement in his July 13, 1949 letter "so hätten die Erben sicherlich die Handhabe gehabt, die Legaterfüllung zu verhindern."  In any case, I am enclosing for your review the opinion of Dr. Andreas Lintl which squarely contradicts Dr. Rinesch's conclusion in his April 11, 1948 letter.  Since this is such an important point, I think it deserves emphasis to the Beirat so that they do not automatically take some of the questionable statements written in the old documents at face value.

 The key fact is that the Austrian Gallery did not have a right to inherit the Klimt paintings. Once this fact is acknowledged, all of the contrary statements in the correspondence must be seen in a different light.

 5. Resümee.   Your first legal question assumes something that is very much in doubt, namely, whether the Austrian Gallery ever had any right to inherit the paintings?  As you can see from the opinion of Dr. Lintl, the Austrian Gallery never had any right to inherit the Klimt paintings under Adele's will.  Therefore, even if the illegal transactions of the Nazi period had never occurred, the Austrian Gallery still would not have been able to obtain the paintings without a further donation from Ferdinand or the heirs.  Dr. Garzarolli clearly recognized this fact when he wrote to Dr. Grimschitz in March 9, 1948 about the great error that no one had ever bothered to obtain any written confirmation of a donation from Ferdinand Bloch-Bauer.

 So, before you analyze whether any of the transactions during the Nazi period affected the rights of the Austrian Gallery, you must first determine whether the Austrian Gallery ever had any rights at all. It is our opinion that the Austrian Gallery had no rights under Adele's will (or the subsequent written statements by Gustav Bloch-Bauer).  If this is correct, then there is no reason to even consider the question of what effect the subsequent transactions might have had.

 With regard to the text of your first paragraph, please reconsider your discussion of the 1941 trade in light of the comments made above under point 1.

 With regard to the second paragraph of the Resümee, see Dr. Lintl's opinion, which concludes that the hearsay evidence of Ferdinand's "Erklärung" is of no legal consequence.  Please be very careful about making assumptions or conclusions about the knowledge or intentions of the family. First, there is no evidence that either Maria Altmann or her sister Luise Gattin were aware of any of these transactions or the correspondence between Dr. Rinesch and Robert Bentley. There is not even any confirmation that Dr. Rinesch actually possessed a "Vollmacht" for any of the heirs.  Dr. Rinesch and Robert Bentley probably did not inform Maria Altmann and Luise Gattin (75% of the estate) of the tactical decision to donate the Klimt paintings in exchange for export permits until after the donation was completed.  This should be emphasized for the Beirat: there is nothing in writing from Ferdinand or any of his heirs that confirms an intent to donate the Klimt paintings to the Austrian Gallery!  Even Dr. Garzarolli failed to obtain confirmation of Dr. Rinesch's actions from any of the heirs.

 Second, the statement about Adele's will in the December 6, 1947 letter (and in the February 16, 1948 letter from Dr. Garzarolli to Dr. Rinesch demanding that the heirs turn over all of the paintings) is manifestly false, and it is very important for the Beirat to realize that Dr. Rinesch was purposely misled about the contents and (in)significance of Adele's will up until April 10, the day he agreed to give up the heirs' right to recover the paintings.  (Indeed, given the incorrect statements made by Dr. Grimschitz in his March 1, 1948 letter, it seems likely that even Dr. Führer was misled by the Austrian Gallery about the contents of Adele's will -- which would explain the erroneous statements in Dr. Führer's letter concerning the Klimt paintings.) Robert Bentley's March 8, 1948 letter, which we do not have a copy of, is similarly based on the Austrian Gallery's misleading representations, and would be of no consequence, even if we knew what was actually written.  Robert Bentley did not know until after April 11, 1948, that Adele's will did not give the Austrian Gallery a right to inherit the paintings.

 Therefore, I do not understand and strongly disagree with your statement "[D]as Testament der Adele Bloch-Bauer [war] der Familie bekannt und das Legat der Klimt-Bilder sollte grunsätzlich nicht in Frage gestellt werden."  Although the heirs were never made aware of it until after Dr. Rinesch decided to donate the Klimt paintings, the purported significance of Adele's will was and is absolutely in question, as Dr. Garzarolli knew already in March, 1948, and as Dr. Rinesch realized only too late on April 10, 1948.  To better understand the issue, you might want to consider the following: How would the heirs have acted in 1948 if they had known the truth, namely, that Adele's will did not give the Austrian Gallery a right to inherit the Klimt paintings (as even Dr. Rinesch concluded in his April 11, 1948 letter)?  Of course, had Dr. Rinesch not already agreed on April 10, 1948 to donate the paintings to the Austrian Gallery, he might have conducted a more careful analysis of the situation and come to the same conclusion as Dr. Lintl (and Dr. Garzarolli): that the heirs were not required to donate the Klimt paintings to the Austrian Gallery.

 Had the Austrian Gallery acted honorably, it would have immediately disclosed the true facts and returned the paintings to the heirs of Ferdinand Bloch-Bauer. Instead, the Austrian Gallery held onto the paintings and prepared for a legal battle until Dr. Rinesch gave in and agreed to give up the heirs' rights in exchange for export permits for other paintings. Of course, the Bundesdenkmalamt never would have let the heirs export the Klimt paintings, so Dr. Rinesch probably concluded that the best course was not to waste time and money fighting for the Klimt paintings, but to use their donation to obtain export permits for other artworks.  It is precisely this forced "tactical" decision which the new law seeks to redress.

 I of course agree with the last portion of the Resümee. One only needs to look at the correspondence from April 10-13, 1948 to realize that Dr. Rinesch decided to give up the heirs' rights to inherit the Klimt paintings in the hope that he would thereby succeed in persuading the Bundesdenkmalamt to provide export permits for other artworks. Again, I think it would be helpful for the Beirat to have copies of all the correspondence referenced in your Report (including the footnotes) and in my February 18, 1999 letter.

 Please feel free to pass on this letter to the Beirat (with my apologies for writing in English).

 II. Albertina -- Dr. Maren Gröning

 My only question is whether the 16 drawings are originals or facsimiles?

 III. MAK -- Julia König

 1. Other pieces. Is the MAK certain that it has not obtained any further portions of the Bloch-Bauer porcelain collection from any other sources? It is my understanding that pieces of the collection come up for auction frequently.  I wonder whether over the years the MAK has purchased or received as a donation any other portions of the collection, since these items would also be subject to restitution under the second prong of the new law.

 2. Resümee. I must say that I am a bit surprised by some of the questions in the Resümee.  Is it really in question whether the Reichsfluchtsteuer imposed on Ferdinand Bloch-Bauer was appropriate? It was agreed already in 1949 that the 34 pieces were subject to restitution.  Does anyone still think Ferdinand Bloch-Bauer would have had to auction his porcelain collection to pay taxes in 1941 if not for the fact that he was driven into exile and all his property was stolen by the Nazis? Similarly, I find question 2(c) more than a little strange. Am I reading this correctly, or is the MAK really asking the heirs of Ferdinand Bloch-Bauer to pay for the return of their stolen property?  I do not see any provision for this in the new law.

 Dr. Bacher, I wish to thank you again for the incredible effort you and your colleagues have put into this Report. It is a credit to your committee and to all of Austria. I look forward to meeting you in the very near future.  As you know I am going to be in Vienna from May 1-11 and would be very happy to arrange a time to meet you and your colleagues during my stay.

     Very truly yours,

     E. Randol Schoenberg

Enclosurecc: Maria Altmann

 Francis Gutmann

 George Bentley

 Trevor Mantle

 Dr. Rudolf Wran

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