William & Mary Business Law Review
Abstract
As claimants continue to come forth asserting claims for artworks their predecessors owned before the Holocaust, they run up against difficulties in trying to reclaim the property. While oftentimes it is not difficult to negotiate an informal return of property due to the immense public pressure and stigma on Nazi-looted works, more complex cases arise when artworks were sold to finance escape from the impending horrors of the Holocaust. In these situations, claimants face much greater difficulties in reclaiming the artworks. For one, the doctrine of duress prevents contracts from being voided if that duress was not applied by a party to the contract. However, when there is no formal document indicating a transfer, courts are much more open to voiding transfers of property under third-party duress. To rectify the problem inherent in the transfers by contract, courts should modify their application of the duress doctrine and view these situations through a pseudo-unconscionability lens, similar to the approach applied to gratuitous transfers. By following an established framework, courts can determine whether or not the situation calls for rendering the contract void. This modification would follow the long-established worldwide trend of removing legal barriers in reclaiming property lost during the Holocaust. This new approach could potentially be expanded to apply in other situations that present stress near or equivalent to the Holocaust so that we can deter taking advantage of those trying to survive or escape.