Still life with kippers, oysters and smokers accessories by Floris van Schooten

Advice concerning the application for restitution of NK 1644

Recommendation number: 
1.8
Type: 
NK collection
Publishing date: 
24 April 2003
Period loss of possession: 
1940-1945
Private owner/art dealer: 
Private individual
Location of loss: 
The Netherlands

By letter of 12 September 2002 the State Secretary for Education, Culture and Science asked the Restitutions Committee for advice about the decision to be taken concerning the application, dated 1 August 2002, by Mrs M.P. S.-S. for restitution of the painting “Still life with kippers, oysters and smokers’ accessories” by Floris van Schooten (NK 1644).

The facts

Following the application for restitution, the Restitutions Committee applied for a copy of the research report issued by the Origins Unknown agency (BHG) dated 18 March 2002 and forwarded it to the applicant. Further investigations were conducted by or on behalf of the Committee in the archives of the Netherlands Art Property Foundation (SNK), and the applicant was asked to provide further information as well.

General considerations

    The Restitutions Committee has drawn up its opinion with due regard for the relevant lines of policy issued by the Ekkart Committee and the government.

    The Restitutions Committee asked itself whether it is acceptable that an opinion to be issued is influenced by its potential consequences for decisions in other cases. The Committee resolved that such influence cannot be accepted, save cases where special circumstances apply, since allowing such influence would be impossible to justify to the applicant concerned.

    The Restitutions Committee then asked itself how to deal with the circumstance that certain facts can no longer be traced, that certain data has been lost or has not been retrieved, 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 cases where exceptional circumstances apply.

    Finally, the Restitutions 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.

    Special considerations

    1. The applicant is the sole heir of her uncle, Mr O.H. B. (‘B.’ below), witness the statement in the letter to the Committee dated 18 December 2002 by the applicant’s authorised representative, Mr R.J.C. van H., civil-law notary in Amsterdam and executor in B.’s estate.
    2. According to the research report mentioned above, from approximately 1930 to 1943 “Still life with kippers, oysters and smokers’ accessories” by Floris van Schooten (NK 1644) was the property of B., who was designated by the Nazi regime to be of Jewish descent.

    3. As regards the loss of the Floris van Schooten painting from B.’s property we know that B., after having successfully concealed the painting from the Nazis for some time, sold the work for NLG 12,500 to a German or Austrian buyer in 1943, via a Dutch intermediary. In his letter to the SNK dated 13 October 1947, B. describes the sale as follows: "Seeing that, as a Jew, I had lost virtually all access to financial resources (…), I had no choice but to sell a still life by Floris van Schooten, which I had managed to conceal, to a German buyer through the intermediary services of Mr J. Looy. I thought I might need the proceeds to help me fly to England, but I never managed to get there." Several statements from interested parties found in the SNK archives corroborate this description of the facts.

    4. The Floris van Schooten painting was involuntarily lost from B.’s possession as a consequence of persecution by the Nazi regime. This means that the application for restitution is admissible.

    5. As regards the question of whether the applicant, in respect of the restitution of this painting, should pay any amount in compensation for the proceeds on its sale, the Committee’s primary consideration, in accordance with the fourth recommendation by the Ekkart Committee dated 26 April 2001, is that compensation for the proceeds on sale is only in order if and insofar as the seller ever had the free disposal of those proceeds.

    6. In view of the implementation of anti-Jewish measures in the Netherlands from the end of 1941 – the so-called Liro regulations – under which Jewish citizens largely lost the power to freely dispose of their property, the Committee believes there is every reason to assume, as long as no evidence to the contrary is produced, that B. could not freely dispose of the money he was paid in 1943. Given that the proceeds on the sale, in the case in hand, were intended to finance an escape to a foreign country and that this plan failed, it is safe to assume – with due regard for the general consideration concerning the lack of further details – that in practice B. could not have freely disposed of the proceeds of NLG 12,500. Further support for this conclusion is provided by the facts that B., shortly after having sold the Floris van Schooten painting, was incarcerated in the camp at Westerbork, and that an amount (Sperrung) was paid, as attested by a statement made after the war and filed in the SNK archives, to prevent B. and his wife from being transported to an extermination camp. Hence, there are no grounds to conclude that any form of compensation should be paid.

    7. This is not altered by the fact that B., according to the research report, tried to repurchase the painting on as many as five occasions – in 1947, 1948, 1955, 1964 and 1973 – and on three of those occasions – in 1955, 1964 and 1973 – offered the full proceeds of NLG 12,500 in return even though the Committee believes he had never had the free disposal of that amount. B’s repeated offer should be seen in the light of his attempts to regain possession of the painting by way of amicable settlement, and must not be construed as a waiver of his claim to regain possession without compensation.

    Conclusion

    In view of the above, the Committee advises the State Secretary for Education, Culture and Science to return the painting “Still life with kippers, oysters and smokers’ accessories” (NK 1644) to B.’s heir.

    Adopted at the meeting of 24 April 2003.

    J.M. Polak (Chairman)
    B.J. Asscher (Vice Chairman)
    J.Th.M. Bank
    J.C.M. Leijten
    E.J. van Straaten
    H.M. Verrijn Stuart

    Summary: