Restitution in 2026: The Year Delay Stopped Working

A chain of possession, established link by link

On 3 April 2026 Justice Joel M. Cohen of the New York Supreme Court granted summary judgment to the estate of Oscar Stettiner and declared it entitled to possession of Modigliani's Seated Man With a Cane of 1918. The decision, 2026 NY Slip Op 50461(U), runs to sixteen marked pages.

The court found the painting shown at the seventeenth Venice Biennale in 1930 as number 35 in the Modigliani room, lent by Stettiner. A letter of 21 March 1930 names him as its owner. The shipping agent asked whether to collect it at his address in the Rue du Cirque, which the 1930 census records as his private home, not his firm's address in the Avenue Matignon. A Biennale label is still glued to the stretcher; read under ultraviolet and infrared light by the claimant's expert Marc Smith, it gives the owner as Stettiner, that address, and a selling price of 25,000 francs. It is not recorded as sold, and went back to Paris on 19 November 1930 in transport number 1304.

German authorities arrested and interned Stettiner in 1943 and appointed a provisional administrator, Marcel Philippon, who sold his property. At a sale on the firm's premises on 3 July 1944 the Modigliani was lot 6, bought for 16,000 francs by John Van der Klip. Those 16,000 francs are the figure the French court recorded; nothing separates it from any auctioneer's charge, so it should be cited as the sum paid and not as a hammer price.

Stettiner sued. On 22 November 1946 the Civil Court of the Seine noted the nullity of the sale and ordered Van der Klip or any subsequent purchaser to return the painting. The bailiff's report of 22 March 1947 records Van der Klip saying it had been resold to an unnamed American officer. Stettiner died in France in 1948 without recovering it. The trade press reports that he fled Paris in 1939; the judgment, on a French court document of 1945, records him arrested in France in 1943.

The catalogue entry was wrong in three ways, and the errors all pointed one way

The painting reappeared at Christie's in London in June 1996 as lot 15. Its provenance read: Roger Dutilleul, Paris; anonymous sale, Paris, circa 1940 to 1945, to J. Livengood, Paris; and thence by descent to the present owners. The court held that description "false and misleading in three critical respects", whether "by design or inadvertence". The Art Newspaper reports the 1996 price as USD 3.2m; the judgment gives no figure, and that number is not identified as hammer or premium-inclusive.

First, J. Livengood was not a wartime purchaser: John Livengood was one of the two consignors in 1996, and he was born in 1952. Second, the possessors' own expert accepted that Dutilleul never owned it. Third, the catalogue placed the picture at the 1930 Biennale as number 16 rather than 35, as the Biennale catalogue, an exhibition photograph and the archive all record. The consignors were Van der Klip's daughter and grandson. International Art Center, the buyer, testified that it did no provenance research of its own.

Twelve years later it was offered again. Elizabeth Gorayeb, a head researcher in Sotheby's impressionist and modern art department, could not account for the war years and wrote to the Wildenstein Institute in Paris. The reply pointed to a note in the archive, on the back of a photograph of it, carrying the words for stolen and for searching in America, the words "Famille Stettiner", and a filing date of 26 April 1950. Sotheby's added Stettiner, Paris, by 1930 to the provenance with a qualifier, and corrected the Biennale number. Gorayeb's evidence was that the house decided to publish and, in her phrase, shake the tree. Nobody came forward, and it failed to sell.

Lucian Simmons, then head of Sotheby's restitution department, examined the label by hand in 2008. His deposition evidence was that he could read Stettiner under the smudge, but might not have made it out had the 1930 catalogue not put the name in his mind. The court observed that ultraviolet photographs from an inspection the possessors had resisted for years reveal it clearly. The evidence sat on the back of the picture throughout; reading it required knowing what to look for.

Laches was decided on the facts ten days before Congress abolished it

The possessors' principal defence was laches. New York requires a possessor pleading it to show prejudice from the delay, not merely lapse of time, and the court held the defence failed as a matter of law. Stettiner had brought a claim, won a judgment and pursued its enforcement, so a want of diligence by the original owner was not apparent. The picture was not publicly shown between 1944 and 1996. Van der Klip's account of a sale to an American officer looked to the court like a feint to send the family and the French authorities in the wrong direction.

That reasoning distinguishes the authorities the possessors relied on. Laches barred the claim in the Second Circuit's Republic of Turkey litigation because the object had stood in the Metropolitan Museum's permanent galleries for decades, and in a 2025 First Department decision involving the Solomon R. Guggenheim Foundation because the painting had not been hidden and the family had discussed its provenance with the buyer. Concealment is the difference, and concealment is a finding of fact.

Ten days later the question stopped being a question. On 13 April 2026 the Holocaust Expropriated Art Recovery Act of 2025 became Public Law 119-82. For any claim otherwise timely under the Act, "all defenses or substantive doctrines based on the passage of time, including laches, adverse possession, acquisitive prescription, and usucapion, may not be applied". The findings state that some courts had frustrated the 2016 Act by dismissing claims on such defences, and they name three: Zuckerman in the Second Circuit, Cassirer and Von Saher in the Ninth.

The amendments reach claims pending at enactment, including claims on appeal. After the court set a thirty-day deadline for return in June 2026, lawyers for the possessors said "We will be appealing the judge's decisions". Any appeal will be argued under a statute that has removed the defence they lost on.

What Public Law 119-82 changed, including the part nobody quoted

The sunset is gone. The 2016 Act said in terms that it "shall cease to have effect on January 1, 2027", and its filing window closed on 31 December 2026. The new law strikes the sunset and replaces the closing date with claims filed on or after enactment. A statute eight months from expiry is now permanent.

Sovereign immunity is met head on. A new subsection deems any covered claim to be an action in which rights in violation of international law are in issue for the expropriation exception in the Foreign Sovereign Immunities Act, whatever the victim's nationality, notwithstanding the domestic takings rule of Federal Republic of Germany v Philipp. That rule had closed the American courts to claimants whose property was taken by their own government, which describes most German Jewish claimants.

Non-merits dismissals go with the time defences: act of state, international comity, forum non conveniens and prudential exhaustion may not be applied. Service of process becomes nationwide, and there is a severability clause, which is what a drafter writes when a constitutional challenge is expected. The Senate passed the bill on 10 December 2025, the House on 16 March 2026.

The fourth change went unreported. The 2016 findings had endorsed alternative dispute resolution: such processes, Congress said, "will yield just and fair resolutions in a more efficient and predictable manner". Public Law 119-82 strikes that and inserts "may, in some circumstances, yield just and fair resolutions as well". Congress did not abolish the panels. It demoted them, in the same statute in which it cleared the courtroom of every obstacle it could find.

One citation deserves a note. The Ninth Circuit decision named as the example of acquisitive prescription is the January 2024 judgment for Spain in the Cassirer family's claim to Pissarro's Rue Saint-Honore in the Afternoon. Effect of Rain, which this archive holds as a record. The Supreme Court vacated that judgment on 10 March 2025 and sent the case back in the light of a new California statute. Congress illustrated its point with a decision already undone.

Germany moved the same dispute out of court, and put the condition in the small print

While Washington cleared the courtroom, Berlin built a tribunal. The Schiedsgerichtsbarkeit NS-Raubgut, agreed in March 2024 between the federal government, the Laender and the municipal associations, began work on 1 December 2025 and replaced the Beratende Kommission, which had issued recommendations for two decades. Cases go to five-member panels drawn from a register of 36 arbitrators, under a joint presidency of Elisabeth Steiner, formerly of the European Court of Human Rights, and Peter Mueller, a former judge of the Federal Constitutional Court. Awards bind, and the panels decide under a published assessment framework supplying evidential relief and presumptions.

The reform is widely summarised as giving claimants a unilateral right to start proceedings, and that summary is incomplete. The body's own procedure page states the condition: a victim or descendant may begin an arbitration where the holding institution has lodged a standing offer, or where it consents in the individual case. The right to compel is exactly as wide as the register of standing offers, and that register is published. Counted on 4 August 2026 it names 235 institutions and public bodies, six federal and the rest under fifteen Land headings, from the Prussian Cultural Heritage Foundation and the Klassik Stiftung Weimar down to municipal museums and universities. An institution absent from it cannot be compelled.

The panel route has a record worth knowing. This archive's record of Kandinsky's Bild mit Haeusern sets out what a comparable case produced in the Netherlands: a binding opinion of 22 October 2018 refused restitution to the Lewenstein heirs after weighing the museum's interest against theirs, the test was abolished after a national review, and the painting went back in February 2022 because Amsterdam city council voted to return it, not because any panel changed its mind. The German commission that recommended the return of the sister lot from that 1940 sale in June 2023 no longer exists. Switzerland's commission for historically burdened cultural heritage began work on 1 March 2026.