Restitution involves the act of returning a stolen object to the owner who was the victim of the theft.
However, if a gallery sells a painting to a citizen of the German Reich who then takes it home across the Rhine, does that constitute theft, especially if the object itself is proven not to have been stolen in the first place?
When the French claims agency, the Office des Biens et Intérêts Privés (OBIP) restituted a painting to the Selection Committee (Commission de choix) of the Louvre in December 1951, it implied that the Selection Committee and/or the Louvre had lost the painting in the first place and justice was being served by incorporating the painting into French State collections. In this particular instance, the painting, “Vénus, Bacchus, Cérès, amours et saphirs”, by Frans Fioris, had been sold in 1941 to a leading German agent—Karl Haberstock--through a gallery owned by Hugo Engel in German-occupied France. Although the item had not been stolen prior to sale, the postwar French government nevertheless treated the work as a stolen object. Back in the heady days of the liberation of North Africa by Anglo-American troops and contingents of the French Resistance, the French National Liberation Committee had declared that all transactions on French territory with representatives of the Reich were deemed null and void, an act which paved the way for a complex and lopsided campaign of restitution and compensation in the years following the Liberation of France. For all intents and purposes, the act of declaring a transaction null and void conferred on the transacted object the taint of theft and illegality.
Let’s pretend for a second that France had not been invaded by Nazi Germany. Hugo Engel still would have offered the Fioris painting to Karl Haberstock, a Nazi cultural agent, who then returned to the Reich with it, acting on behalf of his superiors in the Nazi hierarchy. The French government would not have objected to the sale and departure of this object from French territory. But all of that changed with the German invasion of France and the subsequent wholesale requisitions, acts of plunder and spoliation that befell those living within its borders. Now, the Fioris painting was no longer just another painting being put up for sale in a Paris gallery. It was now treated as if it belonged to France, in other words, its acquisition and transfer to Reich territory was tantamount to a forcible removal of the painting from the bosom of that organic national entity known as France. In sum, a war of aggression and conquest against France waged by Nazi Germany had transformed the privately-owned Fioris painting into a State-controlled object that earned it the full protection and consideration of the French State. A curious turn of alchemy which afforded France to lay claims in the postwar to a significant haul of art that had emanated from its private art market and been acquired by individuals who had transported their cultural purchases outside its borders into the Reich.
The Allies countenanced this conversion of private commercial transactions under Nazi rule into illicit acts of property transfers, thus equating them with actual acts of plunder and misappropriation. Regardless of how one judges this policy, it has produced, among other things, an awkward category of objects known as the MNRs—Musées Nationaux Récupération. Many of the MNRs fall into the category of the Fioris painting—acquired in the open private art market during the German occupation and removed from French territory by the purchaser.
The question now becomes: should the MNR’s even exist since they are as close to war booty as one can get, save for those which are, beyond a shadow of a doubt, plundered objects? The maintenance of this ambiguity forces us to consider that all objects acquired in France—fair and square—during the period of Vichy rule and German occupation—from June 1940 to the fall of 1944—should be considered as illicit transfers of property until otherwise stated. One can’t have one’s cake and eat it too, but it appears that, for the past sixty years, that is precisely what has occurred, thus casting an inexorable taint of wartime theft and illegality on an unimaginable number of cultural objects that have since made it into countless collections on both sides of the Atlantic Ocean.
Or put another way, why should the famous sale of Georges Viaud's Degas collection during the Vichy years be treated any differently than the sale of the Fioris painting?