Still life with fruit and dead fowl by J. Fyt

Recommendation regarding the application for the restitution of Still life with fruit and fowl by J. Fyt (NK 1728)

Recommendation number: 
1.34
Type: 
NK collection
Publishing date: 
14 May 2007
Period loss of possession: 
1940-1945
Private owner/art dealer: 
Private individual
Location of loss: 
The Netherlands

In a letter dated 11 July 2005, the Minister for Education, Culture and Science (OCW) asked the Restitutions Committee to issue a recommendation regarding the application dated 5 June 2005 submitted by M.M. v. C.-R. (‘the applicant’) for the restitution of a seventeenth-century painting entitled Still life with fruit and fowl by J. Fyt (NK 1728). The claimed work of art is part of the Netherlands Art Property Collection under the custody of the national government and is currently on deposit at the Netherlands Institute for Cultural Heritage.

The procedure

The application for restitution was filed in response to a letter to the applicant dated 25 October 2004 from the Origins Unknown Agency (hereafter referred to as: ‘BHG’), containing a request for more detailed information regarding the painting NK 1728. According to the BHG, the painting was sold by her father-in-law, Dr. Dr. D. van Cappellen, during the war. In response to the request for recommendation, the committee instituted a fact-finding investigation, the results of which were recorded in a draft report dated 31 July 2006. This draft report was submitted to the applicant, to which she responded in a letter dated 17 November 2006. The report was subsequently adopted on 14 May 2007. For the facts of the case, the Committee refers to the report, which is considered an integral part of this recommendation.

General considerations

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.

Special considerations:

  1. The applicant requests the restitution of the painting Still life with fruit and fowl by the Flemish artist J. Fyt, formerly belonging to her father-in-law Dr. Dr. D. van Cappellen. The applicant was married to Dr. D. van Cappellen’s son, who, according to the applicant, died in 2003. She declares that she is filing the application as his heir. No documents have been submitted regarding the applicant’s position pertaining to the law of succession.

  2. The fact-finding investigation has revealed the following: various documents in the archives of the Netherlands Art Property Foundation (hereafter referred to as: ‘SNK’) show that the Amsterdam urologist, Dr. D. van Cappellen, gave the painting by J. Fyt on consignment to the art dealer P. de Boer on 21 March 1941 for the sum of NLG 6,000. De Boer sold the work by Fyt in May 1941 for the sum of NLG 10,000 to Dr. Hans Posse for the Führer Museum that was to be built in Linz. The documents show that Van Cappellen was then paid NLG 6,000, as agreed.

  3. According to a post-war statement from 1949, Van Cappellen told the Dutch authorities that he had sold the painting, along with eleven other works of art, under duress ‘to raise the money to pay a fine imposed by Seys-Inquart.’ The investigation revealed that Van Cappellen was referring to a fine that the Nazis had imposed on a few municipalities, including Amsterdam, soon after the Strike of February 1941, on the 25th of that month. A penalty of NLG 15 million was imposed on Amsterdam. In order to raise the sum, the municipalities were required to requisition payment of the imposed amount from citizens with a taxable income over NLG 10,000 within six weeks (‘reconciliation money’). Documents preserved in the Amsterdam Municipal Archives show that Van Cappellen was required to pay a total of NLG 10,234.10. In November 1942, the municipality of Amsterdam refunded NLG 1,024.31 of it to him, so that in the end, paid a total of NLG 9,209.79. Given the fact that the date on which Van Cappellen gave the painting on consignment to De Boer (21 March 1941) fell within the six-week period that the municipalities were granted, the Committee deems Van Cappellen’s statement credible. However, the Committee would like to note that the investigation revealed that post-war tax legislation provided for the restitution of reconciliation money to those parties involved. Because it was a universal statutory regulation, the Committee considers it plausible that Van Cappellen also took advantage of it or at least could have done so. The Committee therefore also assumes that, after the war, Van Cappellen was compensated for the fine he had paid. At present, there is no way to verify whether this compensation was in full. Inquiries into this matter at the Ministry of Finance did not yield any additional information.

  4. The painting NK 1728 was recovered from Munich in 1946 and returned to the Netherlands where it was probably stored in the SNK depot.

  5. After having recognised the painting at a claims exhibition held from April to June 1950 at the Rijksmuseum in Amsterdam, Van Cappellen submitted a request for restitution. The SNK, succeeded by the Bureau for Restoration Payments and the Restoration of Property (Hergo) under the direction of J. Jolles, acknowledged that the painting by Fyt had belonged to Van Cappellen, but required further proof as to the involuntary nature of the sale. Moreover, Jolles indicated that the painting would only have been returned after NLG 6,000 had been paid, the amount that Van Cappellen had received for it at the time. Because the work of art was valued at a mere NLG 1,000 after the war, Van Cappellen abandoned the procedure.

  6. In the 1980s, Van Cappellen’s son made several attempts to gain possession of the works of art sold by his father at the time, which included the currently claimed painting. However, contacts with the Ministry of Finance and the Ministry of Foreign Affairs did not lead to a decision on the restitution of the works of art. Therefore the Committee does not consider this a case that was settled in the past and deems the application admissible.

  7. As to the question whether restitution can be recommended, the current restitutions policy is concerned with whether the sale of the claimed painting can be considered involuntary and due to circumstances that were directly connected to the Nazi-regime. In this respect, the Committee notes that Van Cappellen was not Jewish, nor did he belong to one of the other groups persecuted by the Nazis. The reversal of the burden of proof for persecuted groups, as provided in the Ekkart Committee’s third recommendation of April 2001, is therefore not applicable. Consequently, the question is whether the sale by Van Cappellen of the painting was directly linked to the fine that the Nazis had imposed and can therefore be considered an involuntary sale.

    The Committee answers this question in the affirmative. Based on the facts found by the investigation, the Committee deems it plausible that Van Cappellen would not have sold the painting if there had been no fine, and is therefore of the opinion that the sale can be deemed involuntary. Particularly the date of sale of the painting is a good indication of this. The Committee believes that, at present, no further information is available for determining whether Van Cappellen could have drawn on other assets to pay the fine. As stated in the general consideration cited under c., the Committee believes that the government is liable for the risk associated with not being able to retrieve evidence due to the passage of time. Lacking any further evidence, the Committee believes that Van Cappellen could not have done so.

  8. The question remains whether the applicant should pay a sum for the return of the painting. In accordance with the Ekkart Committee’s fourth recommendation of April 2001 as adopted by the government, the refund of sales proceeds should be discussed ‘only if and to the extent that the seller or his heirs actually obtained the free disposal of said proceeds’. In this case, the amount should be indexed on the basis of the general price index. In addition, the Ekkart Committee’s ninth recommendation says ‘owners who did not use an earlier opportunity of repurchasing works of art be reafforded such an opportunity, at any rate insofar as the works of art do not qualify for restitution without any financial compensation according to other applicable criteria’. These recommendations are based on the perception that the current restitutions policy should not lead to the original applicant or their heirs becoming wealthier on unfounded grounds.

  9. In this respect, the Committee would like to note that although Van Cappellen probably used the NLG 6,000 of sales proceeds he acquired during the occupation to pay the NLG 9,209.79 fine, the Committee assumes that the state compensated him for it after the war. This means that after the war, Van Cappellen received a substantial portion of the purchase price. The Committee therefore deems it reasonable that the restitution of the work of art is subject to the payment of a monetary consideration. To determine the amount, taking the circumstances into consideration and in accordance with the Ekkart Committee’s fourth recommendation, it recommends that the sum of NLG 6,000 be indexed on the basis of the general price index. Seeing as it is impossible to determine with certainty whether Van Cappellen was recompensed in full for the reconciliation money he paid, the Committee deems a reimbursement of half that amount appropriate.

  10. The Committee advises the Minister to reserve the funds thus obtained, in accordance with the Ekkart Committee’s seventh and eighth Final Recommendations, for Jewish cultural purposes.

Conclusion

The Restitutions Committee advises the Minister for Education, Culture and Science to return the work of art Still life with fruit and fowl by J. Fyt (NK 1728) to the joint heirs of Dr. D. van Cappellen, subject to the condition as previously established in paragraph 9.

Adopted at the meeting of 14 May 2007,

B.J. Asscher (chair)
J.Th.M. Bank
J.C.M. Leijten
P.J.N. van Os
E.J. van Straaten
H.M. Verrijn Stuart