via facsimile: 011-43-1-533-7797

Fr. Bundesministerin Elisabeth Gehrer
Minoritenplatz 5
A-1014 Wien

Re: Estate

Sehr geehrte Frau Bundesministerin:

 Perhaps we both feel the frustration that is the result of our not speaking directly to each other during the past few weeks and having only to review the often unreliable reports in the newspapers. In my view, you have been unfairly criticized for your courageous decision to return artworks to the Rothschild heirs.  However, in following the recommendations of Dr. Wran and Dr. Kremser with regard to the Bloch-Bauer case, it is my opinion that you have made a great mistake and I urge you once again to review the matter carefully and reconsider your decision.

 If it will help, I would like to respond to some of the misleading  that have been made. Although lengthy, this is not an exhaustive list of the issues that must be raised:

  a. With regard to your letter to Der Standard, you assert that the Klimt paintings were not stolen from Ferdinand during the war. ("Die Gemälde wurden weder während des Krieges geraubt . . .") Even if Dr. Kremser's legal interpretation of Adele's will and Ferdinand's oral promise are correct -- and we are certain it is not -- the paintings were to be given to the museum after Ferdinand's death.  Since Ferdinand was alive until November 1945, and there is no evidence that he approved of Dr. Führer's distribution of the paintings (rather to the contrary) it is simply impossible for Austria to assert that the works were not stolen from Ferdinand during his lifetime. Even Dr. Garzarolli admitted that the painting Häuser in Unterach am Attersee was misappropriated by Dr. Führer.  (See his April 2, 1948 letter to Dr. Demus: "Ausserdem befindet sich in derselben Kollektion noch das Gemälde von Klimt 'Seeufer mit Häusern in Kammer', das . . . von Rechtsanwalt Dr. Erich Führer derselben vorenthalten und offensichtlich veruntreut wurde.")

  b. With regard to Prof. Bacher's letter to Der Standard, I note (1) we did not receive any documents from him, but rather only from Hubertus Czernin who, with our permission, was allowed to view and copy documents in January, and (2) Prof. Bacher does not state that he transmitted any documents to the members of the Beirat.  Other than the few documents contained in his March 30, 1999 report, I do not have any confirmation of what documents were reviewed by all the members of the Beirat.

  c. With regard to Dr. Wran's letter to Der Standard, he makes a number of mistaken arguments.

   i. First, he relies on an inapplicable section of Adele's will to prove his assertion that Adele's request to her husband was a legacy.  Punkt IV of Adele's will applied only in the event that Ferdinand died first, in which case Adele would certainly have inherited the Klimt paintings from him and would have had the ability to make a bequest to the Austrian Gallery.  Since this was not the case, and Adele died before Ferdinand, she could only make a request, not a legacy, which is why the sentence in Punkt III is phrased in the way that it is.  Punkt IV has no applicability at all to the interpretation of Punkt III.

   ii. My reference to the male-oriented society in which Adele lived was absolutely correct, as Dr. Lintl pointed out in his second opinion.  Under the law at that time, in the event of a dispute over ownership, it was presumed that the husband was the owner of the property. In this case, the paintings were declared to be Ferdinand's separate property, which under the law at that time was sufficient to be determinative of separate ownership by Ferdinand.  Further, Dr. Wran misunderstood my statement in my May 17 letter. I did not state that I believed Ferdinand had given the paintings to Adele as a gift; rather I only intended to say that he had bought the paintings in honor of his wife.  This is consistent with the historical facts and the results of the probate proceedings. The Beirat's assertion that the paintings belonged to Adele is neither supported by any facts, nor is it consistent with the law in 1925, nor with the actual disposition of Adele's estate in 1926. Has the Beirat concluded that Ferdinand and Gustav Bloch-Bauer committed fraud on the probate court in 1926 by not including the Klimt paintings among Adele's property? If so, on what evidence do they base that preposterous claim?

   iii.  Dr. Wran's reference to Dr. Lintl's second opinion is extremely disingenuous, since he admitted to me that he did not even allow most of the other members of the Beirat to see the opinion.  It clearly refutes Dr. Kremser's argument that Ferdinand or his heirs were obligated to carry out Adele's wishes.  Indeed, even in 1926 it was concluded that Adele's wishes did not have the enforceable character of a bequest.  Dr. Kremser is the first to conclude otherwise, and he does so by disagreeing with established Austrian authorities.

   iv. Dr. Wran's reliance on the 1936 donation of one painting by Ferdinand is completely inappropriate and irrelevant.  It is absolutely clear that the Österreichische Galerie did not have the right to demand that Ferdinand deliver any of the Klimt paintings to the museum in 1936. (Even under Adele's will, Ferdinand was only asked to leave the paintings after his death.) Rather, the museum had to make a request, and Ferdinand had the option of granting or denying that request.  The delivery of one painting in 1936 did not obligate Ferdinand to donate the remaining paintings to the museum.   Further, there is no indication that Ferdinand intended after the events of 1938 to donate any of the paintings. Quite to the contrary, in his last two wills he made no such donation.

   v. Dr. Wran misconstrues the new law, which does not require a successful restitution proceeding, but only that the property was an "object of restitution" ("Gegenstand von Rückstellungen" as opposed to "rückgestellte Gegenstand"). In any case, one of the paintings, Häuser in Unterach am Attersee was actually restituted after the war and kept in Karl Bloch-Bauer's apartment.  Another painting, Birkenwald, was agreed to be restituted by the Städtische Sammlungen in 1947.  Dr. Wran concedes that Dr. Rinesch forwarded to Dr. Garzarolli his clients' requests for restitution ("Rückstellungsansprüchen") for the three paintings held by the Österreichische Galerie. Nothing more is required under the law. It is legal hair-splitting of a type characteristic of the post-war era to claim that even though the paintings were objects of restitution, they do not come under the new law because they were donated before formal restitution proceedings were instituted or concluded. Of course, Dr. Wran's reliance on Dr. Rinesch's April 12, 1948 letter proves our point -- without the heirs' attorney's voluntary (and unauthorized) acknowledgment of Adele's will, the Österreichische Galerie would not have had a claim to the paintings, and they would have had to be restituted, as even Dr. Garzarolli understood. (See his March 9, 1948 letter to Dr. Grimschitz.)

   vi. Again, Dr. Wran splits hairs in his interpretation of the new law with regards to the connection with export permits. As he should know, the Bundesdenkmalamt required Dr. Rinesch to apply for export permits for the entire collection, not individual paintings, as Dr. Demus made clear in his April 3, 1948 meeting with Dr. Rinesch.  On April 13, 1948, Dr. Rinesch made such an application.  The donation of the Klimt paintings on April 10, 1948 was a prerequisite for this application, for otherwise export permits would have been withheld for the entire collection pending a resolution of the heirs' dispute with the Österreichische Galerie, which could have lasted years. Indeed, Dr. Garzarolli had asked Dr. Demus on April 2, 1948 to delay the export permit proceedings for the Bloch-Bauer collection "for tactical reasons." The fact that the paintings were donated at the outset, after discussions with Dr. Demus and Dr. Garzarolli on April 3 and April 10, 1948, respectively, rather than after lengthy restitution proceedings between the Finanzprokuratur and the heirs and the inevitable denial of export permits by the Bundesdenkmalamt is absolutely irrelevant under the new law, which only requires that the paintings were donated in the course of a resulting proceeding under the export restriction law ("im Zuge eines daraus folgenden Verfahrens nach den Bestimmungen des Bundesgesetzes über das Verbot der Ausfuhr"). You cannot on the one hand penalize the heirs for the timing of Dr. Rinesch's decision to donate the Klimt paintings, and on the other hand recognize that Dr. Rinesch was successful in using this timely "donation" to obtain export permits for other paintings -- which is the central focus of the new law.

   vii.  With regard to the Rothschild collection and the Klimt drawings which are to be returned, Dr. Wran makes no relevant distinction between these objects and the Klimt paintings. Does he contend that if the Rothschilds had agreed to donated their items to the federal museum three days before filing an application for export permits for the rest of their collection, that the result under the new law would be different?  As for the Klimt drawings, they were located in Karl's apartment just as the painting Häuser in Unterach am Attersee was, and were taken from the collection -- again just like the Klimt painting -- after being reviewed by the Bundesdenkmalamt and the museum on April 29, 1948 and May 3, 1948, respectively.  Dr. Wran probably did not receive all the documentation, since it was not included in Prof. Bacher's report.

  d. With regard to Dr. Kremser's legal argument I have a great number of responses, not the least of which is the disappointment that he did not have the courage to show the opinion to us and give us an opportunity to respond before the Beirat made its decision, as I had requested on a number of occasions.

   i. As I have repeatedly pointed out, Dr. Kremser's reading of Adele's will is not consistent with the language used in the will, nor with the way the will was read by Adele's husband or her brother-in-law, who administered her estate, or the probate court. The statement "Meine 2 Portraits und die 4 Landschaften" is, as even Dr. Kremser states, inconclusive of ownership. It should be noted that Adele did not say "Meine 2 Portraits und 4 Landschaften," which might imply ownership over the landscapes, nor did she say "die mir gehörende 2 Portraits und 4 Landschaften" as she did when referring to her library.  Indeed, Adele's expression is consistent with the fact that the paintings were not her property.

   ii. In the one sentence of Punkt III which refers to the Klimt paintings, Adele does not use the word "Legat." Only in the next two sentences, which are written on a different page in the original, does she use the word "Legat" in reference to the requested disposition of her library by her husband. The second of these sentences, on which Dr. Kremser heavily relies, clearly pertains, as in the first instance, only to Adele's library. If Adele had meant to refer to the paintings, she would have had to use the plural and say "Legate."  In any case, both of these requests concern proposed testamentary dispositions by Ferdinand, not Adele, which were not viewed as binding on Ferdinand in 1926. A request (Bitte) by Adele that Ferdinand make a bequest (Legat) is not the same as a bequest from Adele.

   iii. As stated above, my reference to the male-oriented society of 1925 was right on point.  I informed Dr. Kremser of this in our telephone conversation of June 9, 1999, but he apparently ignored it.

   iv. I note that Dr. Kremser refers to certain files that have not yet been made available to me concerning the tax paid on Adele's estate.  Please send me copies of these documents. Further, I never meant to imply that Adele did not own any separate property (indeed, I referred to her 50% ownership in the palais in my May 17, 1999 letter), but rather that, as further research has proved, the law in 1926 was such that Ferdinand would be presumed to be the owner of the paintings.  Dr. Kremser does not dispute this.

   v. Dr. Kremser's reliance on Adele's use of the word "Legat" in Punkt III (which refers only to her library) and in Punkt IV (which applies only if Ferdinand predeceases Adele) is misplaced. Dr. Kremser also ignores Adele's use of the word "Bitte" with reference to the requested disposition of the paintings, which is in stark contrast to the use of the word "Verpflichtung" in other parts of the will. Dr. Kremser can speculate as to the emotional justification for the various provisions in Adele's will, but that is pure speculation and of no legal consequence whatsoever.

   vi. Even Dr. Kremser must admit, in section II.2 of his opinion, that Adele's request can be seen as an unenforceable wish.  This is also how Ferdinand and Gustav Bloch-Bauer and the probate court in 1926 saw it. Dr. Lintl has pointed out a number of cases and commentaries that support this position. This should have ended the discussion of Adele's will.  However, Dr. Kremser's attempt to re-litigate the interpretation of Adele's will is typical of the aggressive post-war position of Austria against the victims of the Nazis that has resulted in so much injustice. The real question is: Is Austria going to refuse to return property, even if there is a good possibility that it is looted? Is this what you meant by "reinen Tisch machen"?

   vii. Dr. Kremser's tortured discussion in Section III is equally unconvincing.  In order to come to his desired conclusion, Dr. Kremser must disagree with one of the most respected legal commentators on Austrian civil law (Prof. Rudolf Welser) and misread a 1997 case decided under § 662. In the referenced case, a husband gave his half of a house to his wife on the express condition that she allow his son to use the property during his lifetime and thereafter give the property to his granddaughter. This is clearly a far different case from Adele's request to Ferdinand.  In the 1997 case, there was no dispute that the husband owned half of the property.  Therefore, his bequest to his wife was conditioned on her agreement to use her half of the property in a certain way. In the case of Adele's will, Ferdinand took the position that the paintings were not her property, so there was no possibility of a conditional bequest. Furthermore, in the 1997 case, the result of the wife not accepting the condition of the husband's bequest was that the husband's portion could be claimed by his next heir, not that the condition could be enforced by the intended beneficiary. The wife was permitted to dispose of her separate half of the property as she wished, whereas the husband's portion would go to his next heir. In the case of Ferdinand and Adele, this means that Ferdinand would have been permitted to dispose of his paintings without regard to Adele's wishes. The intended beneficiary of Adele's request, the Österreichische Galerie, would have no standing to enforce the provision of her will against Ferdinand or his heirs. Any portion of Adele's bequest to Ferdinand that was conditioned on his fulfilling her wishes (which in our case is nothing) would then go to Adele's alternate heirs, Dr. Gustav Bloch-Bauer and his descendants. In no case would Ferdinand or his heirs be forced by the Österreichische Galerie to comply with Adele's request.

   viii. Dr. Kremser must ignore the statement in Dr. Gustav Bloch-Bauer's 1926 declaration that the wishes of Adele were not binding ("nicht den zwingenden Charakter einer testamentarischen Verfügung besitzen"), in order to come to the unbelievable conclusion that Ferdinand unconditionally accepted Adele's bequest.  If Ferdinand intended to be legally bound by Adele's wish, then why did he have his brother assert that her wishes were not legally binding?  The fact that Ferdinand chose to donate one of his paintings in 1936 in no way changes the fact that Ferdinand never felt legally obligated to donate the paintings.  Whether he intended to donate all or some of the paintings to the museum before the events of 1938 is of no legal consequence. He certainly changed his mind after 1938, as his last two wills reveal. The real question is whether he was legally bound to make the donation, and the answer is NO.

   ix. In Section III.3. of Dr. Kremser's opinion, he relies on Dr. Rinesch's acknowledgment of Adele's will.  This proves our point.  Without Dr. Rinesch's agreement in 1948, the Österreichische Galerie had no claim to the Klimt paintings.  It was only through the heirs' purported agreement to fulfill Adele's will, which was made by Dr. Rinesch without authorization and under duress in the course of applying for export permits, that the Österreichische Galerie obtained the paintings.

   x. In recognition of the fact that a reasonable person could interpret Adele's will as not legally binding on Ferdinand, Dr. Kremser attempts to make Ferdinand's oral promise to fulfill her wishes into a legally binding agreement. He fails.  First he asserts, without any proof whatsoever, that the Österreichische Galerie formally accepted Ferdinand's gift.  This makes no sense, because at best Ferdinand only promised to make a testamentary disposition of the paintings, which Adele wished to go to the museum after his death.  Thus, until Ferdinand died leaving the bequest, there was never anything for the museum to accept.  However, Ferdinand did not, and could not fulfill Adele's wishes, because all the paintings were stolen from him during the Nazi era.  Of course, Dr. Kremser admits there is no evidence to support this theory.

   xi. Dr. Kremser realizes that in order for Ferdinand's promise to have been binding, it would have had to be notarized, or the paintings would have had to be actually delivered to the museum. Of course, as even Dr. Garzarolli recognized in his March 9, 1948 letter to Prof. Grimschitz, the failure of the museum to obtain a notarized gift defeats the first part of this argument. Dr. Kremser then tries to rely on the obviously false statement of Prof. Grimschitz, repeated in letters by Dr. Rinesch and Dr. Garzarolli, that Ferdinand has asked the Österreichische Galerie to be allowed to keep the paintings. There is absolutely no other evidence of this impossible assertion. Why on earth would Ferdinand have asked permission to keep his own paintings?  Even Adele did not want him to give them to the museum until after he died. Prof. Grimschitz's recollection is completely untrustworthy and obviously fabricated to justify his later complicity in the theft of the paintings from Ferdinand during the war. Dr. Kremser then asserts that even though Ferdinand did not give all the paintings to the museum, his actual gift of one of the paintings in 1936 was sufficient, so long as Ferdinand did not subsequently change his mind.  Not surprisingly, Dr. Kremser has to ignore the events after 1938 and Ferdinand's last two wills, which unmistakably refute this argument.  The fact that Ferdinand did not actually leave the paintings to the museum in his wills of 1942 and 1945 is conclusive proof that he did not always intend to fulfill his wife's wish that he make such a bequest.

   xiii. With regard to the actual delivery by Ferdinand of the paintings, this is obviously not the case with the five paintings claimed by the heirs.  Here, Dr. Kremser makes the astounding argument that even the unauthorized delivery of three paintings by Dr. Führer could be considered actual delivery by Ferdinand. This is an absurd argument, as it implies that a thief can effectuate actual delivery effective to legalize an intended gift. Second, Dr. Kremser ignores Austria's long-standing claim that it was occupied by Germany during the war.  Therefore, delivery to Germany could not constitute delivery to Austria.  Third, Dr. Kremser must pretend that the so-called Nichtigkeitsgesetz never existed. Of course, even Dr. Kremser's argument cannot apply to the two paintings not delivered to the Österreichische Galerie, which only occurred as the result of Dr. Rinesch's purported agreement to acknowledge Adele's will, made without authorization and under duress in the course of applying for export permits.  Once again, Dr. Kremser's reliance on the events of 1948 proves our point.

   xiv. Dr. Kremser was obviously ignorant of the actual history of the Birkenwald painting, which the Städtische Sammlungen agreed to restitute to the heirs in 1947.  He also did not know that after April 1948, Dr. Rinesch assisted the Österreichische Galerie in obtaining the picture. In any case, by relying on the events of 1948, he establishes our principle contention, which is that without the purported agreement of Dr. Rinesch, the museum would not have been able to obtain or keep the paintings.

   xv. Dr. Kremser is simply wrong when he asserts that the Österreichische Galerie had a claim to the five Klimt paintings before March 13, 1938, which Ferdinand was powerless to revoke. Does he contend that if Ferdinand Bloch-Bauer had decided to sell the paintings to a third party on March 12, 1938, that the federal government could have filed suit against the third party to claim the paintings as their own? Can Dr. Kremser cite a single case to support his conclusion? 

   xvi. Dr. Kremser's dismisses Ferdinand Bloch-Bauer's last will, evidencing how little concern he has for Ferdinand's true intentions.  His assertion that the revocation of all prior wills did not affect the gift of the Klimt paintings is absolutely incorrect. At best, Ferdinand orally promised to fulfill Adele's wish to make a testamentary disposition of the paintings. His revocation of all prior wills demonstrates that he did not wish to fulfill that unenforceable promise.

   xvii. I have already responded to Dr. Kremser's conclusions, which Dr. Wran repeated in his letter. I note that none of the allegedly essential conditions that he has applied to this case actually appear in the text of the new law.

 Once again I urge you to investigate this matter personally and not rely necessarily on the reports that have been presented to you.  Although Dr. Wran has given numerous interviews to the newspapers and maintains that the "Advisory Board is fully committed to the rule of law and rejects categorically all authoritarian ideas as well as the persecution of persons who hold divergent views," he has not permitted other members of the Beirat to speak out publicly or to discuss the case. Why?  If Dr. Kremser is so confident in his views, why did he not permit us to review his opinion and respond to his arguments?  Is it because he expressly contradicts leading Austrian legal authorities such as Prof. Welser? Why were Dr. Lintl's written opinions withheld form the other members of the Beirat? 

 If I understand your July 12, 1999 letter correctly, your position is that the heirs must go to court to resolve this dispute.  As I have offered already, we are willing to send this matter to a neutral arbitrator who can fairly review the documents and legal arguments and make a decision that the heirs can accept.  If I do not receive any further communication from you by August 5, 1999, we will presume that you have rejected this offer and will proceed accordingly.

     Sincerly,

     E. Randol Schoenberg

cc:    Dr. Rudolf Wran
 Dr. Manfred Kremser
 Univ.Prof. Dr. Ernst Bacher
 Direktor Gerbert Frodl

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