The Nazis sold thousands of the confiscated works on the open art market to fill wartime coffers. Repeal or reform of the 1938 law could unravel an intricate web of art deals involving such works that have been negotiated around the world in the decades since, something that even many museum curators like Mr. Büche are loath to consider.

Despite the lengths Germany has gone to to repair the moral and material damage done during World War II, for decades the restitution of confiscated art was not a topic of discussion or action here, and no German government has sought to repeal the Nazi law.

Your post questions why the law has not been repealed; and, on the surface, it is a reasonable question.  Framing the issue in that way of course obscures a veritable plethora of considerations and ramifications that would flow from repeal of a law, that you have noted, has served as the root of good title to the works upon which many subsequent transactions have undoubtedly been based.  The sheer effluxion of time since the works were taken will mean that many of those works are now in the possession, and have been through the hands, of many people and institutions whose conduct could not be reasonably impugned, and who have acted only in good faith and almost certainly without notice of what may, upon repeal of the 1938 law, become a defect in the title to the works.  Repeal of the 1938 might well satisfy a moral need but the consequence will almost inevitably be the visiting of considerable harm of other people and institutions who are on any any view blameless.  It is for this reason that many common law jurisdictions will ordinarily protect the position of a bona fide purchaser for value without notice.

Nothing that I have written is intended to suggest that restitution cannot or should not be made where the circumstances reasonably permit it.  I write only to observe that the failure to repeal the 1938 law may not be so much a moral failure as a recognition of the extraordinary consequences that may flow and the almost impossible balancing of the many interests that would be affected.  That in itself is not a reason to stay restitution, however it must also be acknowledged that the intergeneration unravelling of so many transactions will not be without ramification or consequence, and the results could well be incredibly harsh for some people who could only be properly described as innocent.  Many legal scholars will tell you that difficult cases tend to make bad law, and these circumstances may become a stark demonstration of the truth of that adage.