Same surname, two different first names, and an incomplete provenance. It happened to Giovanni Battista Tiepolo’s Saint Francis of Paola Holding a Rosary, a Book and a Staff, which was sold at a prestigious international auction but was later claimed by the rightful heirs of a Jewish art dealer.
In 2019, a painting by Giovanni Battista Tiepolo titled Saint Francis of Paola Holding a
Rosary, a Book, and a Staff was auctioned and sold. In the lot, the owner was described only
as “Property of a distinguished private collection,” and the provenance was listed as “Galerie
Wolfgang Böhler, Bensheim, Germany,” followed by “Anonymous sale.” The literature
provided to support the provenance was Antonio Morassi’s A Complete Catalogue of the
Paintings of G.B. Tiepolo from 1962. But recently, the heirs of a Jewish gallery owner, Otto
Fröhlich, has come forward and sued the auction house for failing to include the complete
provenance of the work, which had been owned and then left behind by its owner, sold under
duress when he fled the Nazis from Austria in 1938.
The Errors and Omissions in the Study of the Provenance of the Tiepolo at Auction
Deeper research into the provenance of the work reveals several major errors and omissions. First, it turns out that the painting was owned by a different person: a gallery owner named Julius Böhler, not Wolfgang Böhler, and that the two were not related. A check of Morassi’s catalogue entry simply mentions “Böhler” and “Munich,” and not the city of Bensheim. Wolfgang Böhler was never connected to this work, as confirmed by his son. The art dealer Julius, whose name was not given in the lot, owned the painting and was known since 1946 as a person involved in the looting of Nazi artworks. According to the Fröhlich heirs who are suing, Julius’ name is listed as a “strong Nazi” with the U.S. government’s Art Looting Investigation Unit Group.
Further research conducted by the Mondex Corporation on behalf of the heirs found
documents showing that Fröhlich had transferred the painting to the Galerie Sanct Lucas in
Vienna for safekeeping when he fled Vienna, but the gallery owner then received permission
from the Nazis to sell the work in 1941 to cover debts Fröhlich owed the gallery. Fröhlich’s
heirs allege that the sale was forced and that the painting was sold below market value.
In the lawsuit, the Fröhlich heirs believe that the auction house intentionally misled the
buyers by changing the names Julius to Wolfgang and the city of Munich to Bensheim in
order to facilitate the sale without raising questions about the work’s past ownership. The
auction house, however, claims that this was a “human error” and that it was unaware of the
work’s problematic provenance history.
The auction house has now undertaken further research and believes it has found a previous
owner who may have a claim to the work. Fröhlich purchased the Tiepolo painting in 1938
from a person, he describes as his cousin, Adele Fischel, who was later deported and
murdered in the Theresienstadt camp. Fröhlich claims that this was a bona fide transaction.
Now an additional problem arises for the seller. Because of privacy laws, the auction house
has the right not to reveal the name of the buyer of the painting at auction. Therefore, the
family has no way to attempt to claim the painting from the buyer. The heirs are asking the
auction house to release the name of the buyer. Auction houses usually do not reveal the
names of consignors or buyers, but the heirs argue that there is a basis for forcing the auction house to do so, because this information is critical to their legal efforts to recover the
painting.
Why was the name incorrectly transcribed as Wolfgang and not Julius and the city as
Bernsheim and not Munich? Who conducted the research and what were their professional
qualifications? What sources did they check or neglect to check?
The Crucial Question
These questions lead to a more important question: what due diligence approach was used to determine the provenance of the work? This issue affects all parties involved in the
transaction: the buyer, the seller, and the auction house as an intermediary. Currently, there are no shared standards for conducting due diligence on works of art. Without such a standard, it is impossible to determine who conducted the due diligence, what was their level of expertise, what sources they used, and how they interpreted the information. It would be
analogous to solving a math problem and arriving at the wrong answer without showing on
paper the steps of how the calculation was done in order to understand where the error lies.
How can an auction house protect itself from “human error” and the legal claims associated
with selling an artwork with a superficial, partial, or incorrect provenance? How can a seller
and a buyer protect themselves from selling or buying a work of art with a problematic
provenance? And how can a judge determine whether it was truly human error or rather an
intentional attempt to cover up or blur problematic information?
The Hecker Standard®, a method for evidence-based due diligence, would require each
member involved in the transaction to hire an independent specialist not involved in the
transaction to follow a codified set of steps to conduct thorough research. The result would be a signed, dated, and most importantly, unbiased Due Diligence Report conducted by a
qualified, well-known, and respected researcher with professional training and specialization
in researching the provenance of art stolen by the Nazis. The chosen specialist must affirm
that they have no conflicts of interest and are not involved in the transaction. Finally, the
specialist must be able to “show their work,” providing a checklist along with material and
documented evidence of the steps in their process, including copies of all documents and
sources used. In the event of a lawsuit, this will allow the judge to determine the nature of the research conducted and the professionalism of the person who conducted the research. I believe that a codified and shared approach to due diligence is the only way buyers, sellers, and auction houses can begin to protect themselves from future legal claims related to superficial or erroneous research or an intentionally nuanced provenance.
In 2019, a painting by Giovanni Battista Tiepolo titled Saint Francis of Paola Holding a
Rosary, a Book, and a Staff was auctioned and sold. In the lot, the owner was described only
as “Property of a distinguished private collection,” and the provenance was listed as “Galerie
Wolfg…
In 2019, a painting by Giovanni Battista Tiepolo titled Saint Francis of Paola Holding a
Rosary, a Book, and a Staff was auctioned and sold. In the lot, the owner was described only
as “Property of a distinguished private collection,” and the provenance was listed as “Galerie
Wolfgang Böhler, Bensheim, Germany,” followed by “Anonymous sale.” The literature
provided to support the provenance was Antonio Morassi’s A Complete Catalogue of the
Paintings of G.B. Tiepolo from 1962. But recently, the heirs of a Jewish gallery owner, Otto
Fröhlich, has come forward and sued the auction house for failing to include the complete
provenance of the work, which had been owned and then left behind by its owner, sold under
duress when he fled the Nazis from Austria in 1938.
The Errors and Omissions in the Study of the Provenance of the Tiepolo at Auction
Deeper research into the provenance of the work reveals several major errors and omissions. First, it turns out that the painting was owned by a different person: a gallery owner named Julius Böhler, not Wolfgang Böhler, and that the two were not related. A check of Morassi’s catalogue entry simply mentions “Böhler” and “Munich,” and not the city of Bensheim. Wolfgang Böhler was never connected to this work, as confirmed by his son. The art dealer Julius, whose name was not given in the lot, owned the painting and was known since 1946 as a person involved in the looting of Nazi artworks. According to the Fröhlich heirs who are suing, Julius’ name is listed as a “strong Nazi” with the U.S. government’s Art Looting Investigation Unit Group.
Further research conducted by the Mondex Corporation on behalf of the heirs found
documents showing that Fröhlich had transferred the painting to the Galerie Sanct Lucas in
Vienna for safekeeping when he fled Vienna, but the gallery owner then received permission
from the Nazis to sell the work in 1941 to cover debts Fröhlich owed the gallery. Fröhlich’s
heirs allege that the sale was forced and that the painting was sold below market value.
In the lawsuit, the Fröhlich heirs believe that the auction house intentionally misled the
buyers by changing the names Julius to Wolfgang and the city of Munich to Bensheim in
order to facilitate the sale without raising questions about the work’s past ownership. The
auction house, however, claims that this was a “human error” and that it was unaware of the
work’s problematic provenance history.
The auction house has now undertaken further research and believes it has found a previous
owner who may have a claim to the work. Fröhlich purchased the Tiepolo painting in 1938
from a person, he describes as his cousin, Adele Fischel, who was later deported and
murdered in the Theresienstadt camp. Fröhlich claims that this was a bona fide transaction.
Now an additional problem arises for the seller. Because of privacy laws, the auction house
has the right not to reveal the name of the buyer of the painting at auction. Therefore, the
family has no way to attempt to claim the painting from the buyer. The heirs are asking the
auction house to release the name of the buyer. Auction houses usually do not reveal the
names of consignors or buyers, but the heirs argue that there is a basis for forcing the auction house to do so, because this information is critical to their legal efforts to recover the
painting.
Why was the name incorrectly transcribed as Wolfgang and not Julius and the city as
Bernsheim and not Munich? Who conducted the research and what were their professional
qualifications? What sources did they check or neglect to check?
The Crucial Question
These questions lead to a more important question: what due diligence approach was used to determine the provenance of the work? This issue affects all parties involved in the
transaction: the buyer, the seller, and the auction house as an intermediary. Currently, there are no shared standards for conducting due diligence on works of art. Without such a standard, it is impossible to determine who conducted the due diligence, what was their level of expertise, what sources they used, and how they interpreted the information. It would be
analogous to solving a math problem and arriving at the wrong answer without showing on
paper the steps of how the calculation was done in order to understand where the error lies.
How can an auction house protect itself from “human error” and the legal claims associated
with selling an artwork with a superficial, partial, or incorrect provenance? How can a seller
and a buyer protect themselves from selling or buying a work of art with a problematic
provenance? And how can a judge determine whether it was truly human error or rather an
intentional attempt to cover up or blur problematic information?
The Hecker Standard®, a method for evidence-based due diligence, would require each
member involved in the transaction to hire an independent specialist not involved in the
transaction to follow a codified set of steps to conduct thorough research. The result would be a signed, dated, and most importantly, unbiased Due Diligence Report conducted by a
qualified, well-known, and respected researcher with professional training and specialization
in researching the provenance of art stolen by the Nazis. The chosen specialist must affirm
that they have no conflicts of interest and are not involved in the transaction. Finally, the
specialist must be able to “show their work,” providing a checklist along with material and
documented evidence of the steps in their process, including copies of all documents and
sources used. In the event of a lawsuit, this will allow the judge to determine the nature of the research conducted and the professionalism of the person who conducted the research. I believe that a codified and shared approach to due diligence is the only way buyers, sellers, and auction houses can begin to protect themselves from future legal claims related to superficial or erroneous research or an intentionally nuanced provenance.
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