Article 11 of the last draft of the General Policy Guidelines for the Netherlands Art Property Foundation of 1946 formulates as a condition for restitution that "there must be no doubt as to the involuntary nature of the loss of the property". In explanation hereof the same article 11 adds:

"Involuntary loss of the property will be basically defined as cases in which the original owners did not lend their co-operation to the loss of the work or works of art belonging to them. Cases will also be included in which such co-operation was given, but where it can be demonstrated to the satisfaction of the Foundation that this took place under force, duress or improper influence, direct or indirect, of the enemy. If in the opinion of the Foundation the conditions stated here have not been satisfied, no restitution shall be made for as long as the claims of the applicants have not been recognised by the competent court."

In carrying out its activities the SNK seems to have acted in accordance with this rather narrow definition of the term "involuntary loss of the property".

It must also be recalled, moreover, that a very high number of registration forms about war-time sales of works of art were filled out by the SNK itself by way of "internal registration forms" and that consequently the only significance that may be attached to the designation free sale on such forms is that this was the view taken by the SNK.

It was already pointed out before that only very few cases were eventually submitted to the courts, but there is at least one judgment which makes it clear that the courts took a broader position in this matter than the SNK. This is the judgment given on 1 July 1952 by the Council for the Restoration of Property Rights in the Gutmann case. In this judgment the Council reversed the judgment of the SNK that sales made in 1941 and in the first quarter of 1942 could not have been forced sales. In reaching its decision the Council took the ground that even though the buyers of the works of art may not have used any direct coercion, the special circumstances might nevertheless warrant the plea of forced sale.

This judgment provides an unambiguous basis for a policy principle to the effect that the characterisation of forced sale may be applied to all sales of works of art by Dutch Jews from 10 May 1940 onwards, unless there is express evidence to the contrary. For the fact is that often the driving motives for selling off works of art consisted of existing or imminent measures of the occupying forces ordering the surrender of works of art to an occupation agency and the fact that possessions left behind be a person fleeing to save his life would be confiscated. So in this respect it is immaterial whether the initiative for the sale came from the buyer or from the seller and likewise immaterial whether the buyer must be deemed to have been acting in good faith or in bad faith. Sales by Jewish owners in Germany and Austria from 1933 and 1938 onwards, respectively, can also be deemed to have been forced sales except for proof to the contrary.

In the case of other private persons the current principle, viz. that it must be proved that a sale was definitely or in all probability made involuntarily, will continue to apply.

Recommendation:

-      The Committee recommends that sales of works of art by Jewish private persons in the Netherlands from 10 May 1940 onwards be treated as forced sales, unless there is express evidence to the contrary. The same principle should be applied in respect of sales by Jewish private persons in Germany and Austria from 1933 and 1938 onwards, respectively.