Wooded landscape with herd near a pond by J.S. van Ruysdael
Recommendation regarding the application for the restitution of Wooded landscape with herd near a pool by J.S. van Ruysdael (NK 2653)
In a letter dated 22 November 2005, the State Secretary for Education, Culture and Science asked the Restitutions Committee to issue a recommendation regarding the application dated 1 September 2005 submitted by M.J. B.-R. and F.H.R. (hereafter: the applicants) for the restitution of the seventeenth-century painting Wooded landscape with herd near a pool by Jacob Salomonsz. van Ruysdael (NK 2653). The painting in question is part of the Netherlands Art Property Collection and is currently on long-term loan to the Dutch Embassy in Washington D.C. (USA). The applicants are represented by Ms A.B. Rubin of the Holocaust Claims Processing Office in New York (USA), which traced the painting when studying the Origins Unknown Agency’s website.
In response to the application for restitution, the Committee conducted an investigation of the facts, the results of which were included in a draft report of 21 August 2006. This report was sent to the applicants. Their representative replied to it in a letter dated 6 November 2006, furnishing additional details concerning the applicants’ position with regard to the law of succession. Subsequently, the Committee adopted the report on 27 November 2006. As regards the facts of the case, the Committee refers to its investigatory 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 applicants request the restitution of the painting entitled Wooded landscape with herd near a pool by J.S. van Ruysdael, which, according to the applicants, their father Markus Mayer (Max) Rothstein (1894-1950) sold involuntarily during the Second World War. The Committee has taken note of a number of documents pertaining to the law of succession in the case of the applicants. In these documents, the applicants state that they are the sole heirs of their mother, Margot Rothstein-Kronheim, who was, according to the applicants’ information, the sole heir of her husband, Max Rothstein.
The applicants included a detailed description of their father’s life in their application for restitution, a description that is in part based on a statement made by Margot Rothstein-Kronheim in 1957. Max Rothstein was born in 1894 in Stry, then the Austro-Hungarian Empire, now Stryj, Ukraine, and was of Jewish extraction. In the 1930s, he lived with his wife and two children in Berlin, and was a co-managing director of the Willy Rosenthal Jr. & Co. bank. Over the years, he had built up a substantial art collection. The political changes that took place from 1933 onwards had far-reaching consequences for Rothstein and his family. Owing to the anti-Jewish measures that forced Rothstein to leave his house and give up his position at the bank, the couple decided to flee to the Netherlands in 1938. According to the applicants, from 1939, Rothstein was compelled to sell works of art in order to support his family. For that purpose, he deposited several works for safe custody/on consignment with Albert Heppner, a Jewish art dealer and friend. In addition, he placed part of his art collection in storage. Some time later, the occupying forces confiscated the stored works. In August 1941, the family succeeded in fleeing the Netherlands and settled in the United States.
The investigation of the provenance of the claimed painting did not establish from which date onwards Max Rothstein had been in possession of the work. It did, however, establish that he had owned the work in early 1939, because it is known that Rothstein had consigned the painting to the auction house of Messrs Christie, Manson & Woods in London on 24 February 1939. It was not sold, however. In 2005, Christie’s in New York informed the Holocaust Claims Processing Office that A. Heppner had represented Max Rothstein at the auction in 1939. The Committee has taken note of various copies of pages of the auction catalogue where the names of Rothstein and Heppner were found, written by hand next to the picture of the claimed painting.
It is also known that on 18 July 1940, Heppner sold the painting to the German Alois Miedl for the sum of NLG 2,600. An invoice of this transaction has survived. In August 1940, Miedl then sold the work for NLG 4,800 to the Reichskanzlei for the Führer Museum that was to be built in Linz. After the war, the painting was recovered and returned to the Netherlands.
The investigation did not show in which capacity Heppner sold the painting in July 1940. The Committee does, however, consider the applicants’ statement plausible that during the sale, Heppner acted in his capacity as Rothstein’s representative and not as owner. In this regard, the Committee refers to the fact that in July 1940, the Rothstein family was still in the Netherlands and had sold works of art through the agency of Heppner before.
Whether Max Rothstein received the sum of NLG 2,600 paid by Miedl did not emerge from the investigation either. In this respect, the applicants state that if the money had been transferred to his bank account, which they do not consider likely, the account would probably have been blocked and Rothstein would have had no access to it. The Committee therefore considers that it cannot be ruled out that Heppner gave Rothstein the money in cash. It is the Committee’s opinion, however, that this has no effect on the decision regarding the application for restitution, as explained under consideration 9.
After the war, the Rothstein family attempted to recover several works from the art collection with the help of the Dutch rights restoration authorities. In a letter to the Netherlands Art Property Foundation dated 7 March 1946, Max Rothstein said that he had given his friend A. Heppner ‘two valuable old paintings’ for safekeeping, without indicating specifically which paintings these were. The claimed painting is not referred to by name in the rights restoration authorities’ file on Rothstein, nor are there indications that the Rothstein family was ever informed of the fact that the painting had been recovered. The post-war documentation refers in particular to a collection of miniatures and to the works put in storage by Rothstein that had been confiscated by the occupier. As there is no question of this case having been settled in the past, the Committee deems the application admissible.
Based on the above, the Committee considers it sufficiently plausible that at the time of the sale to Miedl in 1940, Max Rothstein was indeed the owner of the claimed work. Furthermore, the Committee considers that under current national policy, the sale of the painting should be regarded as involuntary as a result of circumstances directly related to the Nazi regime. In this respect, the Committee refers to the third recommendation of the Ekkart Committee of 26 April 2001, adopted by the government, which stipulates that sales executed by Jewish private persons in the Netherlands after 10 May 1940 should be regarded as involuntary, unless explicitly shown to be otherwise. The Committee considers it plausible that Max Rothstein was forced to sell the work of art to support himself and his family and to fund their emigration.
In the light of the above, the Committee considers the application for restitution of Wooded landscape with herd near a pool by Jacob Salomonsz. van Ruysdael (NK 2653) admissible. The Committee is of the opinion that no conditions should be attached involving repayment of the money possibly received at the time. After all, even if Rothstein had received the purchase price – a fact that can no longer be ascertained – the fourth recommendation of the Ekkart Committee of 26 April 2001 states that the obligation to repay the proceeds of a sale only exists if the seller had been free to use these proceeds as he saw fit. Under current national policy, there are no grounds for repayment in cases in which the money was, in all likelihood, used exclusively in attempts to leave the country, as was probably the case with Rothstein.
The Restitutions Committee advises the Minister for Education, Culture and Science to return the painting Wooded landscape with herd near a pool by J.S. van Ruysdael (NK 2653) to the heirs of Max Rothstein.
Adopted at the meeting of 27 November 2006,
B.J. Asscher (chair)
P.J.N. van Os
E.J. van Straaten
H.M. Verrijn Stuart
I.C. van der Vlies