Kafka's Last Trial

by Benjamin Balint

  At the time, a joke circulated in certain Israeli circles: What’s the worst thing you can say when a security agent at the Tel Aviv airport asks whether you have packed your suitcase by yourself? “No, Esther Hoffe helped me.”

  On January 14, 1975, Hoffe signed an agreement with the state archivist: she was permitted to remove archival material from Israel if she allowed the state archivist to review the material and copy it at his discretion. The state, for its part, undertook not to make the material accessible for a period of fifty years without the express consent of Hoffe or her heirs.

  During the first stage of the trial at the Tel Aviv Family Court, attorney Shmulik Cassouto had noted that the National Library, which was not party to the trial before Judge Shilo in 1973, could not explain why it had waited forty years to contest Hoffe’s ownership of manuscripts given to her by Brod. Legally, the library was within its rights. Section 72 of Israel’s succession law allows an interested party to apply to the registrar to ask for the amendment of a probate order given on the basis of facts or claims that have come to light since the time of the order. This is true even for a party which did not participate in the discussion of the original probate order.

  Yet Cassouto argued that the National Library had brought no new facts beyond those brought before Judge Shilo in 1973. Further, the National Library had brought its claims as part of its challenge of Esther Hoffe’s will, rather than in the proper context: a challenge to Brod’s will. Rather than directly challenging Judge Shilo’s interpretation of that will, the library waited for Esther’s death to submit an objection to the order for the fulfillment of her will. Yet the claims rejected by Shilo cannot now be accepted forty years later, Cassouto argued. “If the National Library was of the opinion that it has a right to get Kafka’s manuscripts ‘for free,’ as it claims today, what prevented it from making such a claim in the 1970s?” Cassouto asked. “That it did not do so speaks for itself, and it must not be permitted now to revise a probate forty years after the fact.” Cassouto suggested that the National Library had waited until neither Brod nor Hoffe could speak for themselves. “Now that the principal actors have passed away, it is all too easy for the National Library to infringe on the boundaries of imagination and claim itself as Dr. Brod’s true heir.”

  14

  Last Heiress: Selling Kafka

  Sotheby’s, New Bond Street, London

  November 17, 1988

  Kafka did not know [Esther] Hoffe, never conversed with her, and never met her. She was not dear to his heart. There was no familial relationship. He did not know her daughters. Kafka and Hoffe lived and died in different countries. . . . Consider from Kafka’s perspective the sale of his personal writings—the very writings he instructed to be destroyed—at public auction to the highest bidder by the secretary of his friend and by her daughters. Would this accord with justice?

  —Tel Aviv District Court ruling, June 2015

  Is someone who receives a Picasso as an inheritance and wants to sell it prohibited from doing so because he didn’t know Picasso?

  —Eva Hoffe, February 2017

  On November 17, 1988, two decades after Max Brod’s death, Esther Hoffe put the 316-page original 1914 manuscript of Kafka’s The Trial up for auction at Sotheby’s in the heart of London’s Mayfair district. Kafka had written it in ten different notebooks shortly after breaking off his first engagement to Felice Bauer. In September 1914, he had read the first chapter to Brod. On deciding that the novel had failed, he ripped out the pages from the notebooks and kept them in his desk in sixteen bundles of loose sheets. In 1920, he gave them to Brod, and Brod had given them in turn to Esther.

  The decision to auction The Trial “was a very dangerous move,” said Mark Anderson, a leading Kafka scholar at Columbia University. “It could have disappeared into the safe of an internet billionaire, or a Japanese banker who had a wine collection and wanted to have a Kafka manuscript. It could have disappeared forever and never been available to scholars.”

  Germany’s preeminent Kafka expert Klaus Wagenbach was aghast for the same reason—in putting it up for auction Esther risked the chance that it could be sold to a private collector who would once again lock it away. “Max Brod certainly did not risk his life to save Kafka’s manuscripts from the Nazis so that they can now be sold off by Esther Hoffe with total contempt for literary obligations,” Wagenbach said. “There was great anger with my mother after the Sotheby’s sale,” Eva Hoffe told me. “She used to be harassed by threatening phone calls at 2 a.m.”

  As long as Brod was alive, Esther had never attempted to sell a Kafka manuscript. After Brod’s death, however, she changed course. In 1974, for example, twenty-two letters and ten postcards sent by Kafka to Brod, among other documents, were auctioned off for 90,000 Deutsche marks (€46,000). In 1981, Esther offered the autographed copy of Kafka’s story “Wedding Preparations in the Country” to the German Literature Archive in Marbach for the large sum of 350,000 Deutsche marks. The Marbach archive declined.

  The same year, Michael Krueger, publisher of Hanser Verlag, came from Munich to Tel Aviv to ask Esther about acquiring the rights to publish Kafka’s sketches. Refusing to let him into her apartment, Esther insisted on talking with him in the stairwell. She referred Krueger to Elio Froehlich, a Zürich lawyer (also executor of Robert Walser’s estate), who told him that even to look at the sketches would cost Krueger 100,000 marks. Krueger declined.

  In 1988, before the Sotheby’s auction, Esther Hoffe concluded a contract with the Swiss publisher Artemis & Winkler. She ceded rights for the publication of Max Brod’s diaries in exchange for a five-digit sum. She received the advance payment but never handed over the journals. Eva Koralnik, of the Zürich-based Liepman Literary Agency, mediated the deal. “For many years we tried to persuade her to honor the contract, but she always refused,” Koralnik told Haaretz. Artemis & Winkler sued for breach of contract. “I went personally to Switzerland and met with the director of the publishing house,” Eva Hoffe responded in an interview with Haaretz. “I explained to him that our only request was that the sections relating to the Hoffe family not be published. He agreed and allowed us to go through the diaries and send them back piecemeal. The suit against us was withdrawn and we planned to transfer the material as agreed. In the meantime, though, my mother’s sight deteriorated, she could hardly read, and everything was delayed.”

  In the interim, Artemis & Winkler filed for bankruptcy, and Esther never returned the advance. “When we heard that the publishing house had gone bankrupt,” Eva Hoffe said, “we consulted with attorney Mibi Moser about what to do and to whom we should return the advance. He said that if there was no publishing house, there was no one to return it to.”

  Given her previous miscues, would Esther come through this time at Sotheby’s?

  _____

  In the weeks before the auction, to create anticipation, Sotheby’s exhibited Kafka’s unfinished manuscript on a three-city tour in New York, Tokyo, and Hong Kong.

  On the afternoon of the auction, a tense duel ensued among the bidders for The Trial. They had assembled from New York, Ottowa, Paris, Brussels, Amsterdam, Berlin, Rome, Zürich, Budapest, Moscow, Warsaw, Istanbul, even Tokyo; none came from Jerusalem. The forty-nine-year-old director of the Marbach archive, Ulrich Ott, sat in the center of the room. He wished to add The Trial to the archive’s existing Kafka stock: Kafka’s letters to Milena Jesenská (sold in 1981 by the heirs of Salman Schocken to the Federal Republic of Germany, which gave the letters as a permanent loan to Marbach), and the manuscript of Kafka’s short story “The Village Schoolmaster” (purchased at an auction in Berlin in 1956).

  The latter had been a gift from Max Brod to Hans-Joachim Schoeps, who in turn put the manuscript up for auction at the Galerie Gerd Rosen (founded by a Jewish bookseller in 1945). The buyer: Ott’s predecessor and founding director of the Marbach archive, Bernhard Zeller. Zeller called the manuscript “the primal cell (Urzelle) of the Marbach Kafka collection,
” and planned to publish a facsimile. Salman Schocken sought a temporary restraining order on the grounds that Marbach’s publication of the story would infringe on his rights to Kafka’s works. Zeller could ill afford an international intellectual property rights battle with a Jewish publisher over Kafka, of all people, even if, as he believed, Marbach would win. In the end, Marbach published the text (but not a full facsimile) of Kafka’s story in 1958, accompanied by a special note underlining Schocken’s rights to the material.

  Now faced with the chance to buy The Trial, Ott hesitated, for two reasons: first, the estimated price: £1 million. Second, Ott felt that The Trial might find a more appropriate home at the Bodleian Library in Oxford, which held the two manuscripts of Kafka’s other unfinished novels. It was also home to the scholar Malcolm Pasley, who was then working on the critical edition of The Trial. “Pasley indeed tried to negotiate the purchase for Oxford,” Ott told me by e-mail, “but informed us that he failed (this was the era of Prime Minister Margaret Thatcher, who was very parsimonious in affairs of culture). He and Kafka’s niece Marianna Steiner urgently asked us to do everything possible to bring the manuscript to Marbach to prevent it ending up in private hands, which would likely render it inaccessible for the critical edition.” Just then, an article by the prominent German journalist and essayist Frank Schirrmacher appeared in the Frankfurter Allgemeine Zeitung. Schirrmacher, who had written his doctoral thesis on Kafka, called for the newly created Cultural Foundation of the German Federal States (Kulturstiftung der Länder) to help fund Marbach to purchase the manuscript.

  Ott had concocted a plan. Since everyone knew of Marbach’s intense interest in acquiring Kafka’s manuscript, he would stop bidding at £900,000. If the bidding went any higher, Ott would leave the field open to Heribert Tenschert, a little-known West German rare-books dealer who had founded an antiquarian book shop in the Bavarian village of Rotthalmünster in 1977. “Indeed,” Ott recalls, “nobody knew that he was acting on Marbach’s behalf.”

  The tactic worked. With Ulrich Ott, Marianna Steiner, and Malcolm Pasley looking on, Tenschert raised his green-and-white bidding paddle and clinched the sale on behalf of the Marbach archive for 1 million pounds sterling (about $2 million dollars, or 3.5 million German marks). “This is perhaps the most important work in twentieth-century German literature, and Germany had to have it,” Tenschert said. It was the highest price ever paid for a modern manuscript, but half of what Sotheby’s and Hoffe had hoped for. (The previous auction record for a literary work was also held by Kafka: in June 1987, Kafka’s five hundred letters to Felice Bauer, dated 1912 to 1917, were sold at Sotheby’s in New York for $605,000.)

  Esther Hoffe was pleased that The Trial would find a home in Germany. She had a long history with the Marbach archive, which she had first visited together with Brod in 1965. Marianna Steiner, Kafka’s seventy-five-year-old niece, said she, too, was pleased with the sale. “I’m very happy because it won’t end up locked away in a drawer,” she said.

  _____

  Esther Hoffe died on September 2, 2007, at age 101. Her will (written in German and dated June 17, 1988) bequeaths the Kafka manuscripts given to her by Brod to her daughters Eva and Ruth: “The drafts, the letters, and the drawings by Kafka, given to me as a gift by the late Max Brod, I gave as a gift to my two daughters in 1970, in equal portions. Kafka’s books from Brod’s library remain in the possession of my two daughters.” The letter she referred to reads as follows:

  August 25, 1970

  To my daughters Ruth Wiesler and Eva (Dorit) Hoffe:

  To avoid any doubt, I hereby declare that I granted you as a gift, in equal portions, the letters and manuscripts and drawings by Kafka and other things given to me as a gift in 1947 and 1952 by Max Brod. . . . Kafka’s manuscripts, as mentioned above, as well as the collection of documents Max Brod had of Kafka’s, do not—I state explicitly—constitute a part of Brod’s estate. . . .

  As long as I live, I reserve to myself the rights to decide about the publication of Kafka’s manuscripts, letters, drawings, etc., or if necessary, to sell some of them. . . . *

  On July 5, 1978, Eva and Ruth signed a power of attorney authorizing their mother to handle the publishing of Kafka’s manuscripts that she had gifted to them, as well as to make any disposition that it deems appropriate in these writings. According to the power of attorney, Esther would be entitled to a third of the receipts from any sale of the manuscripts, and Eva and Ruth would each receive a third.

  As for Brod’s literary and musical estate, published and unpublished both, Esther instructed in paragraph 5 of her 1988 will that her daughters should arrange for it to be preserved intact in the National Library in Jerusalem, a library in Tel Aviv, or the German Literature Archive in Marbach. She added several conditions:

  Any publication of the papers must involve obtaining the consent of my daughters. Royalties and the payments shall be transferred directly to them. . . . The transfer of archival materials to one of the libraries listed above will be conditional upon the commitment of said institution to grant a Max Brod Scholarship and a Max Brod Prize for excellence in the field of literature every two years, at the library’s expense, and from time to time to hold a symposium in memory of Max Brod. The institution that receives the Brod archive will be obliged to invest its efforts in publishing the writings of the estate and in publishing both unpublished material and new editions of books that have already been published.

  15

  The Last Judgment

  Supreme Court of Israel, Jerusalem

  August 7, 2016

  Wrapped in a Torah scroll, Hananiah ben Teradion was placed by the Romans on a pyre and set alight. His disciples asked: “Master, what do you see?” He answered: “I see the parchment burning while the letters of the Law soar upward.”

  —Talmud, Tractate Avoda Zara 18a

  As Eva Hoffe awoke in Tel Aviv one morning in August 2016 from uneasy dreams, she found herself transformed into a disinherited woman. Six weeks after hearing her case, Israel’s Supreme Court issued its unappealable verdict. The panel of three judges unanimously upheld the lower courts’ decisions. It ruled that Eva Hoffe must hand the entire Brod estate, including Kafka’s manuscripts, to the National Library of Israel, in return for which she would receive not a single shekel of compensation.

  Justice Elyakim Rubinstein wrote the twenty-one-page opinion. Citing the Talmudic injunction to fulfill the will of the deceased (Tractate Gittin 14b), he writes that Max Brod clearly wished Esther Hoffe to choose a public archive to house his estate, and intended that the only rights Esther’s daughters would enjoy are the rights to royalties from his literary estate. Rubinstein ruled that any royalties would go to Eva Hoffe, but that the National Library would decide what would be published.

  According to Israeli estate law, Rubinstein continued, Esther was required to fulfill Brod’s wish within a reasonable period of time. “For forty years, Hoffe delayed carrying out Brod’s instruction, and there is no doubt that this constitutes an unreasonable period of time.” Thus, he added, “the Court has the authority to choose the body to which Brod’s estate ought to be transferred.” The fact that in his will Brod listed the National Library first among the possible recipients of his estate signaled that “this is the option he most preferred.”

  Nor was this the high court’s only consideration. Although Brod, “one of the great and celebrated cultural figures of the twentieth century,” was a product of German-speaking culture, Rubinstein wrote, “without a doubt he pitched his tent and rooted his activities in Israel; this fact deserves to be given weight.”

  Following Sa’ar Plinner’s arguments, Rubinstein then distinguished the manuscripts Kafka gave Brod during Kafka’s lifetime from those Brod took from Kafka’s desk after Kafka died.* The latter, the judge argued, had been in Brod’s possession, but not his ownership. Therefore, they cannot be said to belong to Brod’s literary estate. “Yet for practical reasons, and in the absence of claims made
by Kafka’s heirs, they too must be transferred to the National Library along with the other materials.” This was to be done on December 15, 2016.

  Rubinstein concluded the judgment by invoking God’s description of the biblical Joshua. Brod, the judge wrote, was “a man in whom is the spirit” (Numbers 27:18); as such, he hoped that as a result of this ruling, fifty years after his death, the National Library would at last grant Brod “a fitting literary resurrection.”

  _____

  Reactions to the verdict were as swift as they were polarized. “This is a celebratory day for any person of culture, in Israel and abroad,” said David Blumberg, chairman of the board of the National Library. “The Supreme Court asked the National Library to do its utmost to reveal Brod’s estate to the public. The National Library will follow the court’s ruling and will preserve the cultural assets by keeping them in the country as well as making them accessible to the general public.”

  In Kafka’s fictional world, the law is meant for us, and yet we are barred from fathoming its workings. “I don’t know this law,” says Joseph K. in The Trial. “The warder is unimpressed: ‘So much the worse for you.”’ Later on, the painter Titorelli informs Joseph K. that the court is impenetrable (unzugänglich) to argument or reason. It is both omnipresent and opaque, everywhere and nowhere.

  In his parable “The Problem of Our Laws,” Kafka writes:

  Our laws are not generally known; they are kept secret by the small group of nobles who rule us. We are convinced that these ancient laws are scrupulously administrated; nevertheless it is an extremely painful thing to be ruled by laws that one does not know.