Brancusi’s “The Kiss” must remain in Montparnasse cemetery

Décision de justice
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Created by Constantin Brancusi in 1909, the sculpture “The Kiss” adorns the tomb of Tatiana Rachewskaia in Montparnasse cemetery in Paris. The French State listed the entire tomb as a historical monument in 2010 in order to prevent the young woman’s descendants from removing and selling the statue. This decision, challenged by the family, has now been confirmed by the Conseil d’État. The sculpture was purchased for the sole purpose of being affixed to the young woman’s grave, thereby forming one single funeral monument. As such, this monument must be considered as a “building” as defined by law, meaning it can be classified by the State as a historic monument without the authorisation of its owners.

Tatiana Rachewskaia, a 23-year-old Russian woman studying medicine in Paris, took her own life on 5 December 1910. Her parents purchased a concession in perpetuity in Montparnasse cemetery and, to adorn the grave, a sculpture of an embracing couple created by Constantin Brancusi, a young Romanian sculptor who was then totally unknown.

Approached by art dealers, the descendants of the deceased asserted their rights to the concession in perpetuity in 2005 and took steps to remove and export the sculpture. The State opposed this by granting “The Kiss” national treasure status and then registering the entire tomb as a historical monument.

Following an application filed by the descendants, the Paris Administrative Court upheld the State’s decision before this was overturned by the Paris Administrative Court of Appeal. The Ministry of Culture then disputed the court ruling before the Conseil d'État.

The question put to the latter was whether this statue should be considered in legal terms as being a building by designated use which can only be registered as a historic monument with the consent of its owners, or whether the tomb taken as a whole corresponds to a building by nature which can therefore be registered without the consent of its owners.

According to Article 518 of the French Civil Code, “buildings are immovable property by their nature”. According to Article 524 of the same Code, “all movable effects that the owner has attached to the land held in perpetuity are also immovable by destination”.

The Conseil d’État notes that a funeral monument erected on a vault used as a foundation, even if it is built by someone other than the owner of the land, must be considered as a whole, together with all incorporated elements and that make up the construction, as a building, within the meaning and for the application of Article 518 of the French Civil Code.

Applying this rule to the case in question here, the Conseil d'État noted that the statue had been acquired specially for the young woman’s grave, that it was fixed to a stele designed specifically to hold it, made of the same stone as the sculpture and placed on the grave, and that “The Kiss” and its stele therefore form with the grave an indivisible whole that forms a funeral monument. 

The Conseil d'État therefore confirmed that this ensemble is a “building” by nature within the meaning of the law, which allows the State to classify it as a historical monument without obtaining the consent of its owners.

For these reasons, the Conseil d'État has ruled that the inscription of the funeral monument of Tatiana Rachewskaia - consisting of the sculpture “The Kiss”, the stele and the tomb - is legal.

Download French Ordinance No. 447967