Recommendation regarding Hamburger III
In a letter dated 3 November 2015 the Minister of Education, Culture and Science (hereinafter referred to as the Minister) asked the Restitutions Committee (hereinafter referred to as the Committee) for advice about the application of 14 September 2015 from XX (hereinafter referred to as the Applicant) for restitution of the painting God Appears to Abraham at Shechem by C.N. Moeyaert. This work is part of the Netherlands Art Property Collection (hereinafter referred to as the NK collection) with inventory number NK 3401. It is currently in the custody of Stichting Museum Catharijneconvent. The Applicant is represented by James Palmer of Mondex Corporation in Canada.
Pursuant to article 2, paragraph 1, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, as amended, there is a Committee that is tasked with advising the Minister at the Minister’s request about decisions to be taken regarding applications for the restitution of items of cultural value whose original owner involuntarily lost possession due to circumstances directly related to the Nazi regime and which are:
a. part of the NK collection or
b. among the other holdings of the Dutch State.
Pursuant to paragraph 4, the Committee advises about applications as referred to in paragraph 1, under a, submitted to the Minister before 30 June 2015 with due regard for government policy in this respect. The Committee deals with applications as referred to in paragraph 1, under a, submitted on or after 30 June 2015 in accordance with paragraph 5.
Pursuant to paragraph 5, the Committee advises with regard to applications on the basis of the yardsticks of reasonableness and fairness.
The change in the assessment framework with effect from 30 June 2015 is laid down in a Decree by the State Secretary for Education, Culture and Science of 4 July 2012, regarding an amendment of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in connection with evaluation of the restitution policy.
The Committee conducted an investigation into the facts in response to the Minister’s request for advice. The results of the investigation are recorded in an overview of the facts dated 7 March 2016. The Applicant responded to it in an email dated 4 May 2016. The Minister gave the Committee to understand that no response would be forthcoming. The Applicant and the Minister have let it be known that they have no need for a hearing.
- The Applicant is the only heir of her father Gustaaf Hamburger (1887-1977), hereinafter also referred to as Hamburger. She contends that possession of the claimed painting was lost involuntarily at the time of the Nazi occupation as a result of circumstances directly connected with the Nazi regime. In her opinion all known information points to the fact that, at the time possession was lost, the painting belonged to Hamburger.
- The Jewish banker Hamburger was born on 29 October 1887 in Utrecht. He was married to Clara Bertha Gerzon (1900-2007). They had two children: Peter Lionel Hamburger, born on 21 July 1921 and the Applicant, XX, born on YY. Hamburger collected art, including paintings and porcelain. He died in 1977.
- In 1920 Hamburger founded the bank Hamburger & Co’s Bankierskantoor N.V. (hereinafter also referred to as the bank) in Amsterdam together with his brother Albert Hamburger and A.E.D. von Saher. Day-to-day management of the bank was in the hands of Albert and Gustaaf Hamburger. In addition to being a director of the bank, Albert Hamburger was also formal director of N.V. tot Uitoefening van den Kunsthandel (hereinafter also referred to as the gallery) in Amsterdam, which was founded in 1927 by David Hamburger, Abraham Hamburger and Izaak Hamburger, all of whom lived in Paris. In practice the business was run by Herman Hamburger, one of the uncles of Albert and Gustaaf. Herman Hamburger, together with family members, was also active as an art dealer in Paris under the name Hamburger Frères. During various periods the bank and the gallery were housed at 551 Herengracht and 579 Herengracht in Amsterdam.
The claimed painting
- The claimed painting is a large work by C.N. Moeyaert. The work, entitled God Appears to Abraham at Shechem, is oil on canvas, measuring 102 x 168 cm. The painting is signed and dated 1628.
The provenance compiled by the Origins Unknown Agency (hereinafter referred to as BHG) for this painting states that between 1911 and 1936 the work was allegedly part of the collection of D.S. (David) Granaat of Amsterdam. Between 18 June 1936 and 28 May 1941 BHG places the picture with ‘H. Hamburger (art gallery)’ of Paris with the comment: ‘On 18 June 1936 this painting was given to S. Granaat by H. Hamburger for safekeeping’. This is a reference to Siegfried Granaat, David Granaat’s son. On 28 May 1941 the work ended up, through Eduard Plietzsch, with the Dienststelle Mühlmann (Mühlmann Agency), and then in the collection of the Führer Museum to be established in Linz.
- As stated in BHG’s provenance, the painting currently being claimed was originally part of the collection of David Granaat and later that of his son Siegfried Granaat. The latter owned a considerable amount of property, including 579 Herengracht, where the bank Hamburger & Co’s Bankierskantoor was located, and 512 Herengracht. The latter was also his residence.
Documents relating to the ownership situation of the painting currently being claimed were found in the file opened by the Abteilung Feindvermögen (Enemy Assets Department) of the Generalkommissariat für Finanz und Justiz (General Commissariat for Finance and Justice) during the occupation concerning management of Siegfried Granaat’s assets. The following is relevant to the assessment of the Applicant’s claim.
- On 20 May 1930 Siegfried Granaat and Hamburger & Co’s Bankierskantoor recorded in a registered private instrument that the bank purchased a group of artworks from Granaat with a value of NLG 230,515. The said artworks are described in a list attached to the instrument. Under that instrument the items were subsequently given by the bank for safekeeping to Granaat, who acknowledged receipt of them for safekeeping subject, among other things, to the obligation to return the items to the bank as and when the bank requested. Granaat was credited by the bank with the aforementioned sum. He was also entitled to, within a year, buy back the goods, provided that he paid the bank the price in cash. The bank was entitled to oblige Granaat to buy back all or some of the goods at the price the bank paid for them. If Granaat was unable to fulfil this obligation, the bank was entitled without judicial intervention to have the artworks auctioned off or sold privately. A work by Moeyaert is mentioned under the heading ‘Paintings in the dining room’ on the fifth page of the list, signed by Granaat and the bank, attached to the instrument as:
C. Moeyaert. Biblical scene. [f.] 9,000.--
On 29 December 1930 the bank and Granaat entered into a similar agreement with regard to a number of other artworks.
- In a letter dated 11 May 1936 from Siegfried Granaat to Hamburger & Co’s Bankierskantoor N.V., the former confirmed that the bank had written the following to him on 11 May 1936.
Pursuant to article 5 of the undertaking between you and us entered into by you on 20 May 1930 and 29 December 1930, we request you to buy back from us the works of art we purchased from you in accordance with those agreements for the prices referred to in article 1 of the aforementioned agreements no later than 18 May next, the total amount of the prices being f. 230,515.-- and f. 40,305.00, or a total of f. 270,820.--, in cash, that is to be paid to us on the aforesaid 18 May at the latest next in return for the delivery of the aforementioned works of art. In the absence of this payment, pursuant to the provisions of article 6 of the agreements referred to several times in the foregoing, we will have to sell the aforementioned works of art.
In that same letter he responded to this as follows.
To my regret I have to inform you that I am unable to pay either before or after the date of 18 May next referred to in your letter the amount due to you for buying back and paying for the works of art you refer to.
- It emerges from a letter from Granaat to the bank of 18 June 1936 that the notification from Granaat to the bank that he was not able to buy back the works of art he had previously sold, including the painting currently being claimed, resulted in their sale by the bank to Herman Hamburger. In this letter Granaat refers to a letter from the bank to him of the same date.
Further to our letter of 11 May last, we advise you herewith that the works of art etc. in question and referred to on the enclosed lists signed by us have been sold by us to Mr Herman Hamburger, Paris, 121 Avenue de Wagram, for a combined sum of f. -67,000.-. (…)
In his letter Granaat furthermore stated that he concurred with the content of the bank’s letter. In the management file of the Netherlands Art Property Foundation (hereinafter referred to as the SNK) about Gustaaf Hamburger, copies were found of a few inventories with the heading ‘belonging to the statement of 18 June 1936 by the undersigned’, which probably refers to the aforementioned statement by Siegfried Granaat. According to the copy the list was originally signed by Siegfried Granaat.
At the top of the first list there is the following note written in pencil: ‘issued on 24-10-49 by Mr Somers Dir Hamburger & Co’s Bankierskantoor’. At the top of each page it is moreover stated that the inventory concerns ‘the works of art etc. that are in the property at 512 Heerengracht, Amsterdam, and which are being kept there in custody by the undersigned according to the aforementioned statement for Mr Herman Hamburger, Paris, 121 Avenue de Wagram’.
On the third page of the list, under the heading ‘Paintings in the dining room’, the works identified include still lifes by De Heem and Kalf as well as ‘C. Mooyaert. Biblical scene’.
During the occupation
- It can be deduced from the course of events outlined above that the bank sold the claimed painting to Herman Hamburger in 1936. The painting was then held by Siegfried Granaat in safekeeping for Herman Hamburger at 512 Herengracht.
It can be deduced from a report dated 19 February 1941 by C.H. Oldach, who had been appointed as administrator of Siegfried Granaat’s assets, that this situation remained unchanged until the beginning of the occupation. The report was addressed to the Generalreferat Feindvermögen of the Generalkommissariat für Finanz und Wirtschaft (General Section of the Enemy Assets Department of the General Commissariat for Finance and Economics) and was based on the documents referred to in considerations 6 to 8. Oldach reported that the circumstances connected with Herman Hamburger’s claim had been carefully investigated and he enclosed a list of all the household effects that were at 512 Herengracht. This list was prepared by the estate agent Jac. Leefson Jzn. of Amsterdam on the instructions of the primary creditor. The painting currently being claimed is included in the list of artworks that belonged to Herman Hamburger.
- After Oldach had contacted the Mühlmann Agency at the request of the Enemy Assets Department, on 12 May 1941 an employee of that agency, Dr Eduard Plietzsch, came to see the artworks at 512 Herengracht. In a letter of 14 May 1941 he listed ten paintings among the possessions of Herman Hamburger that he was interested in (hereinafter referred to as the Plietzsch list):
68. Wouwerman, Painting of a horseman
75. De Heem. Large still life,
182. Mooyaart. Biblical scene,
183/4. two seventeenth-century still lifes
185. F. van Mieris. Portrait of a man
186. De Heem. Still life.
191. Hendrik Pot. Portrait of a man
192. Willem Kalff. Still life
266. Couvyn. Kitchen interior.
The painting currently being claimed, number 182 on this list, was ultimately sold by the Mühlmann Agency to Hitler for 13,270 reichsmarks.
After the war
- In the autumn of 1945 Gustaaf Hamburger made a declaration to the SNK about the involuntary loss of possession of a part of his art collection. No declaration under his name concerning the loss of possession of the painting currently being claimed was found. However, three declaration forms regarding the painting currently being claimed were found in the SNK files. Two of them were internal declaration forms, which means they were filled in by an SNK employee.
It is stated on the internal declaration form dated 6 October 1945 that the painting was originally in the possession of Siegfried Granaat. The form was completed using information provided by J. Jolles, the lawyer of the Amsterdamse Bank N.V. The declaration is probably connected to the fact that this bank attached Siegfried Granaat’s house in 1939.
It is stated on the declaration form completed by Herman Hamburger and dated 31 October 1945 that the painting was originally held by Siegfried Granaat in safekeeping. This form was registered by the SNK under number 3390.
Finally there is the internal declaration form of 3 December 1945, also with serial number 3390. On it there is a statement that the painting was originally in the possession of ‘Albert Hamburger, 20 Waldeck Pyrmontlaan, South Amsterdam, but was held by S. Granaat of 512 Heerengracht, Central Amsterdam, in safekeeping.’
- So although declarations were made to the SNK immediately after the war about the loss of possession of the painting currently being claimed, it did not lead to its restitution. This was indeed not possible because in 1946 the painting was not returned to the Netherlands but to Belgium. It was not to be transferred to the Netherlands until 1956. On 17 August 1956 the Dutch Embassy in Brussels reported that it had received the work on 9 August. It was then sent to the Ministry of Finance in The Hague.
On 14 November 1956 the aforementioned J. Jolles wrote the following about the currently claimed painting in a letter to this ministry.
´This painting had been attached by the tax authorities and the Amsterdamsche Bank, yet it probably belonged to Mr Herman Hamburger. On behalf of the Amsterdamsche Bank N.V. I can advise you that the bank no longer lays claim to the painting and that you can consider the claim, which I originally lodged in this regard, as having lapsed.’
In addition a letter was found from the Administration Directorate of the General Treasury of the Ministry of Finance dated 12 April 1957 to the Dutch Embassy in Bonn. In the letter, which was about the Dutch claim for restitution by the Federal Republic of Germany of the currently claimed work, it was stated that the ministry had received a painting from Belgium, a biblical scene by Moeyaart, and that the Hamburger heirs had yet to inform the ministry about the identification of the painting. No further correspondence about this was found.
- However, documents were found about five other paintings on the Plietzsch list, as described under A, B and C.
A. In the first place it concerned a ‘large still life’ by De Heem (no. 75) and a still life by Willem Kalf (no. 192). Declaration forms signed by Herman Hamburger on 31 October 1945 concerning both works were found. On them it is stated that the paintings were originally given to Siegfried Granaat for safekeeping.
Herman Hamburger died on 21 September 1948. On 24 September 1949 his son Gilbert Hamburger wrote a letter from the Ritz Hotel in London to the SNK in which he contended that these two still lifes had been reclaimed by his father and that the ‘aforementioned paintings had been part of the Granaat collection, which was purchased by the late Herman Hamburger in around 1936 on the instructions of Mr G. Hamburger and that he had consented to the said paintings being put at the disposal of G. Hamburger by your Foundation.’
Gustaaf Hamburger wrote to the SNK on 4 October 1949 saying that he was enclosing a power of attorney from Gilbert Hamburger authorizing release of the paintings by Kalff and De Heem to him.
B. Documents were furthermore found in the SNK files relating to the portrait of a man by Van Mieris (no. 185). It is stated on a declaration form signed by Herman Hamburger on 31 October 1945 that this painting was originally given to Siegfried Granaat for safekeeping. It is stated on an internal declaration form dated 3 December 1945 concerning the same painting that the declaration was made by Herman Hamburger, and the missing painting was originally in the possession of ‘Albert Hamburger, 20 Waldeck Pyrmontlaan, South Amsterdam, but was held by S. Granaat of 512 Heerengracht, Central Amsterdam, in safekeeping’, and that it came into the possession of ‘Dr Mühlmann’ as a result of a forced sale.
The painting was ultimately returned at the end of 1953 to the managing director of Hamburger & Co’s Bankierskantoor, as authorized representative of Gustaaf Hamburger, but not until Gilbert Hamburger had declared he consented to this.
C. Finally, documents were found in the SNK files about the portrait of a man by Hendrik Pot (no. 191) and the still life by De Heem listed under no. 186. Declaration forms signed by Herman Hamburger on 31 October 1945 concerning both works were found. On them it is stated that the paintings were originally given to Siegfried Granaat for safekeeping. Gustaaf Hamburger stated on a declaration of receipt prepared by the SNK and signed by him that before the works came into the hands of the Germans he had been the only rightful owner of the works.
Assessment of the claim
- The restitution application concerns an item of cultural value that is part of the NK collection. The present application was submitted after 30 June 2015 and therefore the Committee must give advice about this application ‘on the basis of the yardsticks of reasonableness and fairness’. In an assessment on the basis of these yardsticks it is furthermore the case that the return of a claimed item of cultural value can only be recommended if it has been established that the right of ownership is highly likely and if there are no indications that contradict this, as expressed in the eighth recommendation of the Ekkart Committee in 2001. It is explained in the notes to this recommendation that conclusive proof of ownership is not requested from the former owner or the then owner’s heirs.
- The documents referred to in considerations 6 to 8 give a description of the claimed painting’s prewar ownership situation. It follows from the document of 20 May 1930 that the bank acquired the claimed painting from Granaat at that time. One of the conditions of this purchase was that Granaat had to buy it back when the bank requested him to do so. When the bank made such a request in 1936 and Granaat was unable to buy it back, the bank sold the claimed painting to Herman Hamburger. This emerges from the bank’s letter to Granaat of 18 June 1936 that Granaat quoted. Thereafter the claimed painting was kept by Granaat for Herman Hamburger at 512 Herengracht, from where it was ultimately removed by the Mühlmann Agency. There are no indications that the claimed painting had at that moment become the property (again) of the bank or of Gustaaf Hamburger.
- When the overview of the facts was sent to the Applicant she was asked on what grounds she believed she had a case for restitution of the claimed painting despite the absence of any indications that she is an heir of Herman Hamburger. In her response the Applicant contended that the documents relating to the post-war restitution of other artworks on the Plietzsch list by the SNK to Gustaaf Hamburger are an indication that the actual owner (she uses the term ‘beneficial owner’) of the currently claimed painting was Gustaaf Hamburger. According to the Applicant a number of artworks on the Plietzsch list, with provenances comparable to that of the claimed painting, were given back to Gustaaf Hamburger after the war. The claimed painting should therefore be returned to her.
- All the paintings on the Plietzsch list were part of the transaction of 20 May 1930 between Siegfried Granaat and the N.V. Hamburger & Co’s Bankierskantoor. Above there is a description of what happened to five of these paintings after the war. The ‘large still life’ by De Heem and the paintings by Kalf and Van Mieris were given back to Gustaaf Hamburger by the SNK, but not until the heir of Herman Hamburger, Gilbert Hamburger, had granted authorization or had given permission. The ‘still life’ by De Heem and the painting by Hendrik Pot were handed back to Gustaaf Hamburger. It is not known whether Gilbert Hamburger also gave permission for these returns.
So although five works on the Plietzsch list with provenances comparable to that of the claimed painting were restituted to Gustaaf Hamburger, the fact that the return of three of these works required authorization or permission from Gilbert Hamburger is in fact an indication that apparently these works were not considered to be the property of Gustaaf Hamburger. The Committee furthermore takes the view – as explained in considerations 9 and 10 – that there are clear indications that at the time it was acquired by the Mühlmann Agency in 1941 it belonged to Herman Hamburger.
With regard to the assessment of the present application, the Committee therefore attributes no decisive significance to the circumstance that after the war the SNK supposedly returned two of the artworks referred to on the Plietzsch list to Gustaaf Hamburger without authorization or permission from Herman Hamburger or his heirs.
- On the grounds of the above the Committee finds that it has not been sufficiently established that in 1941, at the time it was obtained by the Mühlmann Agency, the claimed painting belonged to Gustaaf Hamburger. It will therefore recommend rejection of the Applicant’s claim.
The Restitutions Committee advises the Minister of Education, Culture and Science to reject the Applicant’s claim.
Adopted at the meeting on 29 June 2016 by W.J.M. Davids (Chairman), J.T.M. Bank, R. Herrmann, P.J.N. van Os, E.J. van Straaten, and I.C. van der Vlies (Vice-Chair), and signed by the Chairman and the Secretary.
(W.J.M. Davids, Chairman) (R.A.M. Nachbahr, Secretary)