Binding advice concerning the dispute over The Marriage of Tobias and Sarah by Jan Steen

Photo: Museum Bredius

Binding advice concerning the dispute over The Marriage of Tobias and Sarah by Jan Steen

Recommendation number: 
3.93
Type: 
Binding expert opinion
Publishing date: 
6 October 2008
Period loss of possession: 
1940-1945
Private owner/art dealer: 
Art dealership
Location of loss: 
The Netherlands

BINDING ADVICE

in the dispute between:

The Hague Municipal Council
represented by the councillor responsible for
Culture and Finance, Mrs J. Klijnsma
and mr. R. van Dam
in The Hague
hereafter referred to as ‘the Municipal Council’,

and:

Mrs M. von Saher-Langenbein
represented by mr. R.W. Polak,
in The Hague
hereafter referred to as ‘Von Saher’,

given by the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in The Hague (the Restitutions Committee), hereafter referred to as ‘the Committee’.

1. INTRODUCTION

1.1 The parties are joint owners of the painting The Marriage of Tobias and Sarah by Jan Steen, also known as The Wedding Night of Tobias and Sarah. The painting is currently housed in Museum Bredius in The Hague.

1.2 Joint ownership arose as a result of a radical restoration in 1996 in which two parts of Jan Steen’s painting, which at one time or another had been separated, were physically reunited. The two separate parts, Archangel Raphael and The Prayer of Tobias and Sarah belonged to the Municipal Council and the State of the Netherlands (hereafter referred to as ‘the State’) respectively. The State and the Municipal Council agreed to unify the paintings. Based on the estimated value of The Prayer of Tobias and Sarah and Archangel Raphael, the State and the Municipal Council maintained an ownership ratio of 76 : 24.

1.3 As a result of an application for restitution of The Prayer of Tobias and Sarah (NK 2726, RC 1.15 Goudstikker), the State transferred ownership of its share in the unified painting to Von Saher in 2006.

1.4 Von Saher and the Municipal Council no longer wished to share ownership of the painting and sought a solution that would preserve the unification of the painting. Initially, they failed to reach an agreement but during the procedure before the Committee, they agreed to transfer the Municipal Council’s share in the painting to Von Saher.

2. PROCEDURE

2.1 The parties submitted a joint request to the Minister for Education, Culture and Science (OCW) to have the dispute settled by the Committee. The Minister submitted a written request to the Committee on 6 August 2007, asking the Committee to advise the parties on the dispute in accordance with the procedure laid down in Section 2, subsections 2 and 3 of the Decree establishing the Advisory Committee on the Assessment of Restitution Applications of 16 November 2001 (hereafter referred to as ‘the Decree’). In accordance with Section 2, subsection 5 of the Decree, the Committee issued advice according to the principles of reasonableness and fairness in the aforementioned procedure. In letters dated 6 July 2007 and 1 November 2007, respectively, Von Saher, also on behalf of the Municipal Council, and the Municipal Council, independently, declared that they would consider the Committee’s advice to be binding.

2.2 The Committee took cognisance of all documents submitted by the parties as well as their individual standpoints. The Committee submitted a written request to Von Saher on 14 April 2008 to provide copies of legal deeds concerning the transfer and delivery of The Prayer of Tobias and Sarah. On 22 May 2008, Von Saher provided transcriptions of the restitution deed, which was deemed sufficient to satisfy the Committee’s request.

2.3 The dispute was heard at the hearing in The Hague on 2 June 2008 in the presence of both parties, who explained their respective positions.

2.4 At the hearing, the parties had a disagreement about the basic principles of the dispute submitted to the Committee before a discussion could take place concerning the contents of the dispute. In letters dated 16 April and 21 May 2008, Von Saher contended, in brief, that the Municipal Council’s preference to maintain the status quo in terms of ownership, which only emerged in the course of the procedure, was inconsistent with the initial agreements that the parties reached previously (joint letter dated 6 July 2007). The Municipal Council denied the grievances of the opposing party in a letter dated 24 April 2008. At the request of both parties, the Committee handed down a decision with regard to this moot point at the hearing, deciding that in accordance with Section 3: 178, subsection 1 of the Dutch Civil Code, no-one should be forced to remain co-owner of an undivided property against their will and that this binding advice, therefore, would be based on the fact that the joint ownership of the painting will be terminated. The Committee informed the parties of its decision in writing on 3 June 2008.

2.5 As a result of information provided by the parties at the hearing, the Committee asked the parties to provide further information in a letter dated 3 June 2008. Von Saher was asked to provide copies of valuations made at her request to both the Committee and the Municipal Council. The Municipal Council was asked to substantiate the cost of restoration to both the Committee and Von Saher. At the same time, both parties were given the opportunity to respond to the information provided by the other. The information and responses requested were received in writing on 23 June, 30 June and 29 July 2008 (the Municipal Council) and on 26 June, 16 July and 1 September 2008 (Von Saher).

2.6 In a letter dated 11 September 2008, the Committee informed both parties that the case was closed and that it would issue a binding advice.

2.7 After the final exchange of letters, the Committee concluded that there was no longer a dispute between the parties concerning the desired resolution of the dispute. Despite this, the parties failed to reach a settlement. As the Committee understands it, the parties seek a binding recommendation that merely formalises in essence the agreement between the parties.

3. BASIC PRINCIPLES OF BINDING ADVICE

On the basis of the letter from the parties dated 6 July 2007, the hearing and the letters from Von Saher dated 26 June 2008 and the Municipal Council dated 29 July 2008, the Committee employs the following basic principles with regard to this case:
(i) In a legal deed dated 7 November 2006, the State transferred all rights to the unified work, in so far it had any, including its share in the unified work and all contractual rights in relation to the Municipal Council, to Von Saher.
(ii) The unified work is currently co-owned by Von Saher and the Municipal Council in a 76 : 24 ownership ratio.
(iii) The parties’ request for advice does not call into question the conclusions drawn from the recommendation of the Committee issued on 19 December 2005 (NK 2726, RC 1.15 Goudstikker) and the decision to grant restitution on 6 February 2006.
(iv) The parties no longer wish to retain joint ownership of the work and joint ownership will, therefore, be terminated (see 2.4).
(v)  The outcome of the recommendation should not result in the physical separation of the painting.
(vi) During the procedure, the parties reached agreement concerning the following solution: the Municipal Council will sell its share in the painting to Von Saher.

4. PREFERENCE OF THE PARTIES: SALE BY THE MUNICIPAL COUNCIL

4.1 The parties assume an ownership ratio of 76 percent (Von Saher) : 24 percent (the Municipal Council). Apparently, they assume that they can claim the respective percentages of the financial value of the painting.

4.2 At the beginning of the procedure, three solutions recognised as such by both parties were put forward. One party would have to sell its share to the other or both parties would have to sell the painting to a third party with a division of the proceeds. Both parties saw the sale to a third party, privately or publicly, as the least preferable option, and focused instead on selling one of the shares to the other.

4.3 During the hearing, the Committee expressed a preference for the sale of Von Saher’s share to the Municipal Council, which would enable the museum to keep the painting in its collection. To this end, the Municipal Council would have to attempt to raise the necessary funds. The Municipal Council and Von Saher agreed to this proposal.

4.4 Some time later, however, the Municipal Council announced that it had been unsuccessful in its fundraising attempts. Therefore the preferred solution did not have the desired result. Given these circumstances, the Committee cannot, in all reasonableness and fairness, recommend that the Municipal Council purchase the painting.

4.5 In a letter dated 29 July 2008, the Municipal Council illuminated its position as follows:
‘The Municipal Council has recently endeavoured to gather sufficient financial means through the relevant funds to acquire Mrs Von Saher’s share. However, given that these funds are the subject of other financial requests, we were unsuccessful. The Municipal Council, therefore, has been forced to abandon the option to buy Mrs Von Saher’s share for the estimated market value. Instead, it is prepared, under the conditions stated in the letter from Mr Polak to the Committee, to sell its share in the painting to Mrs Von Saher (...).’

4.6 Given that the Municipal Council was prepared to sell its share to Von Saher and that Von Saher stated in writing that she was prepared to go along with this option (letter dated 26 June 2008), the Committee came to a decision accordingly. The Committee has seen insufficient support from the parties for sale to a third party.

4.7 In the procedure, Von Saher stated that the estimated value of The Prayer of Tobias and Sarah was USD 2,892,000 corresponding to her 76 percent share. This valuation was based on an exchange rate of EUR 1 = USD 1.55.[1] In a letter dated 29 July 2008, the Municipal Council agreed to both the value and the exchange rate. Consequently, the parties agreed that the value of the 24 percent share was USD 913,263[2] and that of the entire painting USD 3,805,263.

4.8 The Municipal Council will sell its share in the painting to Von Saher for the total sum of EUR 589,201.94.[3]

5. CONTRIBUTION TO THE COST OF RESTORATION

5.1 During the procedure, the Municipal Council announced that they wanted to include the costs of unifying the two paintings in the transaction. Von Saher stated that she was prepared to contribute a proportional amount to the costs, i.e. 76 percent, on the condition that the Municipal Council substantiate the costs.

5.2. To that end, the Municipal Council provided the following explanation (enclosed in a letter dated 29 July 2008).
‘[T]he number of hours that the two restorers from the Gemeentemuseum Den Haag spent on unifying the two paintings, which was a very time-consuming business, amounts to approximately 1,500, which equates to 37.5 work weeks. This amounts to a total of €43,785 based on a gross hourly rate of €29.19. The additional costs of €1,215 relate to materials and space, but I should note that the cost of materials are minimal and that we have only added spatial cost as a symbolic gesture. The total cost, therefore, amounts to approximately €45,000.’

5.3 The Committee has decided that the Municipal Council has sufficiently substantiated the restoration costs in terms of labour costs. The Committee has also considered the fact that the restoration was carried out internally and that the Municipal Council could not produce any invoices as a result. The Committee has also taken into consideration the fact that the restoration was substantial and that the time the Municipal Council says was spent on the restoration is entirely plausible. Von Saher is therefore obligated to keep her promise to contribute proportionally to the cost of restoration.

5.4 Von Saher’s objection to the amount of the additional costs, which were recently put forward in a letter dated 1 September 2008, was legitimate. The Committee sees no reason to pass on costs for the use of materials and space for a restoration that was carried out internally. Accordingly, the Committee has based Von Saher’s contribution towards the cost of restoration on the labour costs alone.

5.5 The Committee, therefore, advises Von Saher to pay 76 percent of the total labour costs, i.e. EUR 33,276.60, in addition to the purchase price.[4]

6. CONDITIONS STIPULATED BY THE PARTIES REGARDING THE SALE

6.1 In a letter dated 26 June 2008, Von Saher stated four conditions that she would like to apply to her purchase of the Municipal Council’s share in the painting. The Municipal Council accepted these conditions in a letter dated 29 July 2008 (see the quote in 4.5).

6.2 The conditions are the following: (i) when transferred, the painting is in the same condition as it was when it was valued on 13 October 2006 and 27 March 2007; (ii) the Municipal Council relieves itself of the testamentary obligation of Dr A. Bredius concerning her share in the painting; (iii) the relationship with the Stichting Bredius Genootschap in which the work is loaned out for exhibitions is terminated; (iv) The Ministry of OCW declares that there are no objections to the painting being exported from the Netherlands to a country outside the European Union.

6.3 Although the Committee in principle is open to accept the conditions set by Von Saher and the Municipal Council, given their agreement, its binding advice only includes condition (ii). The testamentary obligation that initially rested on the work Archangel Raphael and that currently rests on the Municipal Council will be released before the option chosen by the parties – i.e. sale by the Municipal Council – can be implemented. This means that the Municipal Council will be immediately required to submit a request for the release from the obligation to the District Court of The Hague.

6.4 Condition (i) relates to the standard statutory requirement of conformity. The Committee assumes in its binding advice that the painting upon transfer will not have been deteriorated since the valuations were made. Condition (iii) was fulfilled in 2006 as a consequence of the termination of the arrangement concerning the loan of works for exhibitions by the Netherlands Institute for Cultural Heritage with the Municipal Council and the Stichting Bredius Genootschap respectively. Condition (iv) is beyond the scope of this advice. If so required, the parties are responsible for making further arrangements and contacting the government to that effect.

7. BINDING ADVICE

a. Von Saher and the Municipal Council are the joint owners of the painting The Marriage of Tobias and Sarah by Jan Steen with a 76 percent : 24 percent share respectively.
b. The following values are assumed: USD 3,805,263 for the entire painting, USD 2,892,000 for Von Saher’s share and USD 913,263 for the Municipal Council’s share. The exchange rate is EUR 1 = USD 1.55.
c. The Municipal Council should immediately submit a request for the release from the obligation mentioned in 6.2 under (ii) to the District Court of The Hague.
d. After release from the obligation, the Municipal Council is required to the transfer its share in the painting to Von Saher upon payment by Von Saher of EUR 622,478.54, which comprises the following sums: EUR 589,201.94 for the 24 percent share and a proportional (76 percent) contribution of EUR 33,276.60 towards the cost of restoration.

This binding advice was given on 6 October 2008 by I.C. van der Vlies (acting chair), J.Th.M. Bank, J.C.M. Leijten, P.J.N. van Os, E.J. van Straaten, H.M. Verrijn Stuart, and signed by the acting chair and the secretary. During the procedure, R. Herrmann retired as chair of the Committee for reasons unconnected with this case and was involved in this binding advice in an advisory capacity.

(I.C. van der Vlies, acting chair)    (E. Campfens, secretary)

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[1] Explanation of the calculation: given Von Saher’s 76 percent share, Simon Dickinson estimated the value of the painting at 76% x EUR 3,000,000 x 1.55 = USD 3,534,000, while Christie’s valued that part of the painting at USD 2,250,000. The average of the two valuations is USD 2,892,000.
[2] The sum of USD 913,263 is calculated as follows: 24/76 x USD 2,892,000.
[3] USD 913,263/1.55 = EUR 589,201.94.
[4] EUR 43,785 x 76% = EUR 33,276.60.

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