A girl in a pastoral dress holding a basket by J. van Noordt
Recommendation regarding the application for the restitution of A girl in a pastoral dress holding a basket by J. van Noordt (NK 1742)
In a letter dated 11 July 2005, the State Secretary for Culture, Education and Science (‘OCW’) asked the Restitutions Committee to issue a recommendation on the application by A.W.-M. of Amsterdam (hereafter referred to as ‘the applicant’) for restitution of the painting A girl in a pastoral dress holding a basket by J. van Noordt from the former trading stock of Firma Joseph M. Morpurgo (hereafter also referred to as ‘art dealership Morpurgo’). The claimed work of art was previously also attributed to J.A. Backer, G. Flinck and J. Ovens and has been part of the Netherlands Art Property Collection (hereafter referred to as ‘NK collection’) under inventory number NK 1742 since it was returned to the Netherlands after the Second World War. The painting is on long term loan to the Mauritshuis in The Hague.
The application for restitution was filed in response to documentation of the Origins Unknown Agency (hereafter referred to as: ‘BHG’) on several works of art that may have been part of the trading stock of art dealership Morpurgo during the Second World War. Based on this documentation, the applicant asked the State Secretary in an undated letter of June 2005 for restitution of the above painting. In response to the request for recommendation that was subsequently submitted to the Restitutions Committee, the committee instituted a fact-finding investigation, the results of which have been recorded in a draft report of 21 August 2006. This draft report was submitted to the applicant, in response to which she submitted her written memories in a letter of 8 October 2006. The applicant’s response as well as information resulting from the further investigation have been incorporated in the draft report that was adopted in the committee meeting of 12 March 2007. For the facts of the case, the Committee refers to the report, which is considered an integral part of this recommendation.
a) The Committee has drawn up its opinion with due regard for the relevant (lines of) policy issued by the Ekkart Committee and the government.
b) The Committee asked itself whether it is acceptable that an opinion to be issued is influenced by its potential consequences for decisions in subsequent cases. The Committee resolved that such influence cannot be accepted, save in cases where special circumstances apply, since allowing such influence would be impossible to justify to the applicant concerned.
c) The Committee then asked itself how to deal with the circumstance that certain facts can no longer be ascertained, that certain information has been lost or has not been recovered, or that evidence can no longer be otherwise compiled. On this issue, the Committee believes that if the problems that have arisen can be attributed at least in part to the lapse of time, the associated risk should be borne by the government, save in cases where exceptional circumstances apply.
d) The Committee believes that insights and circumstances which, according to generally accepted views, have evidently changed since the Second World War should be granted the status of new facts.
e) Involuntary loss of possession is also understood to mean sale without the art dealer’s consent by ‘Verwalters’ [Nazi-appointed caretakers who took over management of firms owned by Jews] or other custodians not appointed by the owner of items from the old trading stock under their custodianship, in so far as the original owner or his heirs did not receive all the profits of the transaction, or in so far as the owner did not expressly waive his rights after the war.
The applicant requests the restitution of the painting A girl in a pastoral dress holding a basket by J. van Noordt (NK 1742). The applicant is the owner and sole trader of the firm of Joseph M. Morpurgo, established at Herengracht 119 in Amsterdam, the continuation of Firma Joseph M. Morpurgo. In this context, the committee has taken cognisance of an extract from the trade register of the Chamber of Commerce dated 15 September 1947, as well as of a recent extract from the trade register of the Chamber of Commerce dated 1 March 2007. The applicant has indicated that in this application for restitution she is acting as the sole heir to her father Lion Morpurgo. In this context, the committee has taken cognisance of a certificate of inheritance dated 19 April 1994, drawn up by Henricus Bernardus Johannes Stein, notary-public in Amsterdam.
All relevant facts are given in the investigatory report of 12 March 2007. This recommendation limits itself to the following summary. Art dealership Morpurgo was established in 1869 and was managed by the Jewish art dealer Louis Morpurgo, the applicant’s grandfather, from 29 April 1926 onward. Louis Morpurgo was married to Naat van Wynbergen. The couple had five children: Flora, Lion, Selma, Rachel and Susanna Morpurgo. The committee has taken cognisance of an agreement dated 1 August 1939 between Louis Morpurgo and his son Lion Morpurgo, from which it can be inferred that both of them were partners in the Firma Joseph M. Morpurgo. The agreement also shows that after his father’s death, Lion Morpurgo would be entitled to continue the firm on his own, with the obligation of making payments to his father’s other heirs, the amount of which was to be determined later.
At an unknown point in time at the beginning of the Second World War, art dealership Morpurgo was closed down by the Sicherheitsdienst (SD). In November 1941, under a decree issued on 12 March 1941, the aim of which was to remove Jews from the business sector, the German occupiers appointed Jacques Jansen, a trader of German nationality living in Amsterdam, as Verwalter. During Jansen’s administration, Louis and Lion Morpurgo each received an amount of NLG 200 for a period of approximately six months, but they were denied access to the art dealership. A study of the archives has shown that, as Verwalter of the firm of Morpurgo, Jansen ‘continuously “acquired” and “sold” goods as if he were the owner himself, or rather, he made a mess of things’. After the war, most of the books Jansen had kept during his administration had disappeared, so that it is no longer possible to gain a clear insight into the management of art dealership Morpurgo during this period.
In the summer of 1942, the occupying forces deported Louis Morpurgo to Auschwitz concentration camp, where he died on 11 or 12 Augustus 1942. His son Lion Morpurgo was deported to Theresienstadt concentration camp at an unknown date and survived the war.
On the instructions of the German authorities, Jansen's administration of art dealership Morpurgo was terminated in October 1942, after which the business, including part of the remaining trading stock, was sold to a Viennese trader on 19 October 1942. The part of the trading stock that was not sold in this transaction was confiscated and auctioned on the instructions of the German Omnia Treuhandgesellschaft mbH (hereafter referred to as ‘Omnia’). Omnia deposited the proceeds of the sales – a total of over NLG 62,000 – in the name of the firm of Morpurgo with the Bank voor Nederlandschen Arbeid N.V. It is not known whether the art dealership had access to this money after the war.
After the liberation, Lion Morpurgo returned from camp Theresienstadt to Amsterdam. He continued the Firma Joseph M. Morpurgo as sole owner as of 1 October 1945. In 1947, he stated the following about the financial damages incurred during the war: ‘All in all, I lost approximately 400,000 guilders to the Germans during the war, which I believe is quite a low estimate. Jansen will have acquired a significant share of this money, or even the lion’s share, I dare claim’.
After the war, Lion Morpurgo reported dozens of objects from the former trading stock of art dealership Morpurgo missing to the Netherlands Art Property Foundation (hereafter referred to as ‘SNK’). Based on the rules for filing such a claim applicable at the time, he limited himself to the works of art that he knew had been sold directly to German buyers. Painting NK 1742 is not listed on the Declaration Forms, nor anywhere else in the Morpurgo dossier in the SNK archive. The committee therefore concludes that no prior application for restitution of NK 1742 has been made, as a result of which this application is admissible.
As regards ownership of the claimed painting (NK 1742), the investigation has yielded the following results. An exhibition catalogue found shows that the painting was part of the art dealership's trading stock in 1929. Moreover, the committee refers to the applicant’s letter of 8 October 2006, in which she recorded her childhood memories from the period starting in ‘approx. 1936 until the end of the first year of the war, 1940’. In this letter, the applicant says she remembered that NK 1742 was in the art dealership in this period: ‘Walking up the narrow stairs, which made a turn coming from the ground floor, you would come to the first floor where painting no. NK 1742 was hanging on the wall facing Spui, approximately in the middle’.
The investigation has also revealed that, at an unknown point in time, NK 1742 came into the possession of Haarlem dealer M. de Ridder, who, on 13 January 1944, sold the work of art through an agent for the collection of the Führermuseum in Linz that was to be established. Archival evidence shows that at some point, before it was in the possession of M. de Ridder, NK 1742 was part of the collection of H.P. Doodeheefver, an Amsterdam private art collector, known to be active on the art market during the occupation. Based on a surviving list of accounts receivable of art dealership Morpurgo, the committee has found that H.P. Doodeheefver purchased a work of art from the firm, during the administration of Verwalter Jansen, in the period between 1 December 1941 and 18 October 1942. Given the fact that most of Jansen’s books have disappeared, it is impossible to say exactly what he purchased.
Based on the above, the committee deems it highly likely that the painting A girl in a pastoral dress holding a basket was still part of the trading stock of the Morpurgo art dealership on 1 December 1941 and that it was sold to H.P. Doodeheefver prior to 18 October 1942, under Verwalter Jansen’s administration. The committee refers to the eighth recommendation of the Ekkart Committee from 2001, which was adopted by the government and also applies to art dealerships, and which states that a work of art be restituted if the title thereto can be proved with a high degree of probability and there are no indications to the contrary. An explanation to this recommendation states that, in dividing the burden of proof, the applicant rather than the State should be given the benefit of the doubt.
As regards the question of whether the loss of possession of NK 1742 can be considered involuntary, the committee rules as follows. As considered above, the committee deems it highly likely that NK 1742 was sold to Doodeheefver during Verwalter Jansen’s administration. Given the fact that Louis and Lion Morpurgo were denied access to their company almost immediately upon the start of Jansen’s administration, the committee considers it likely that they did not consent to this sale. With reference to the sixth art dealership recommendation of the Ekkart Committee from 2003, which states that sales by Verwalters from the stocks under their management are considered an indication of involuntary sale, the committee concludes that the involuntary nature of the loss of possession is sufficiently plausible. In view of the above, the committee deems the application for restitution of NK 1742 admissible.
The question then remains which parties are entitled to the restitution. The committee’s considerations in this respect are as follows. In accordance with the continuation agreement concluded by Louis and Lion Morpurgo on 1 August 1939, Lion Morpurgo, one of the two partners of the firm of Joseph M. Morpurgo, continued the company after the war after the death of the other partner, viz. his father Louis Morpurgo, on condition that he pay his father’s other heirs. In this context, the committee has taken cognisance of three statements by Lion Morpurgo’s then still surviving sisters dated January 1947, in which they say that the financial settlement in question was to take place at a later point in time. This had to do with the fact that the amounts to be paid could not be determined in 1947 because of pending restoration of rights procedures. The committee assumes that the restitution of NK 1742 was not taken into account in the eventual performance of the agreement and the financial settlement. The committee is of the opinion that the 1939 agreement will have to serve as the basis for restitution of NK 1742. On that basis, art dealership Joseph M. Morpurgo would have been entitled to restitution of NK 1742, with settlement of the value of the painting with Louis Morpurgo’s heirs. The committee rules, therefore, that as owner and sole trader of Joseph M. Morpurgo, the applicant has a claim to restitution of NK 1742, although the value of the painting will have to be settled with Louis Morpurgo’s heirs.
Finally, in light of compensation received by the Morpurgo art dealership, the question will have to be answered of whether restitution of the painting will have to be made conditional on payment of a sum of money. The committee finds as follows. The investigation shows that, after the liberation, art dealership Morpurgo received some compensation of damages incurred on the basis of amicable settlements with brokers and auctioneers. The dossiers also show that, after the war, art dealership Morpurgo submitted claims with the post-war administrators of the Bank voor Nederlandschen Arbeid N.V. and Omnia. Whether and to what extent these claims were honoured is not known. In so far as the committee has been able to ascertain, neither the damages nor the outstanding claims refer to the painting currently claimed. The committee finds, therefore, that art dealership Morpurgo has not received compensation for NK 1742, so that repayment of a sum of money is not in order.
The Restitutions Committee advises the Minister for Culture, Education and Science to return the painting A girl in a pastoral dress holding a basket by J. van Noordt (NK 1742) to the applicant as owner and sole trader of Joseph M. Morpurgo, without prejudice to the stipulations under consideration 12.
Adopted at the meeting of 12 March 2007,
B.J. Asscher (chair)
P.J.N. van Os
E.J. van Straaten
H.M. Verrijn Stuart
I.C. van der Vlies