Bronze sculpture 'Moses', attributed to Alessandro Vittoria
Binding opinion regarding the dispute about restitution of the sculpture ‘Moses’, attributed to Alessandro Vittoria, currently in the possession of the Stichting Hannema-de Stuers Fundatie
regarding the dispute between
AA, of BB (Germany) in his capacity as executor of the estate of Emma Ranette Budge-Lazarus, represented by Lothar Fremy, lawyer of Berlin (Germany)
(hereinafter referred to as the Applicant),
the Stichting Hannema-de Stuers Fundatie (also known as Museum de Fundatie, hereinafter referred to as the Museum), with its registered office in Olst-Wijhe, represented by CC, Director of the Museum),
issued 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), hereinafter referred to as the Committee.
1. The Dispute
The Museum has been the owner of the sculpture ‘Moses’ attributed to Alessandro Vittoria (hereinafter referred to as the work) since 1964. The Applicant contends that the work belonged to the collection of Emma Ranette Budge-Lazarus ((hereinafter also referred to as Budge). After her death in 1937 the work ceased to be part of the estate allegedly as the result of a forced sale. On behalf of the Budge estate the Applicant claims restitution of the work on the grounds of his contention that there was involuntary loss of possession as a result of circumstances directly associated with the Nazi regime.
2. The Procedure
The parties laid the Applicant’s claim to the work before the Committee for investigation and a binding opinion.
The parties declared in writing that they would submit to the Regulations for the Binding Opinion Procedure in accordance with article 2, second paragraph, and article 4, second paragraph, of the Decree Establishing the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (approved by the Committee on 3 December 2007, most recently amended on 27 January 2014, hereinafter referred to as the Regulations) and would accept the Committee’s opinion as binding. The Committee satisfied itself of the identity of the parties.
The Committee took note of all the documents submitted by the parties. It forwarded to the other party copies of all documents. The Committee also conducted additional independent research. As part of its investigation the Committee put questions in writing to the parties and requested information. The findings of the investigation are recorded in an overview of the facts dated 16 October 2017. The Applicant responded to it in an email dated 15 December 2017. The Museum responded in a letter dated 19 December 2017.
3. The Facts
The Committee established the facts on the grounds of the overview of the facts and the responses to it that were received. The following summary is sufficient here.
3.1 Emma Ranette Budge (1852-1937) was of Jewish descent and was born in Hamburg. She was married to Henry Budge, who in 1866 went to the United States, where he acted as a financial specialist in the financing of the construction of the American railways. Henry Budge became an American citizen on 12 July 1882 and on 12 October 1889 Emma also acquired American citizenship as a result of their marriage. The couple had no children. The couple returned with their wealth to Germany in 1903. They settled in a big house at Harvestehuderweg 12 in Hamburg, which became known as Budge Palace. In Hamburg the couple undertook charitable activities and, among other things, contributed to the establishment of Goethe University Frankfurt. They also built up an extensive art collection. Henry Budge died in 1928. Emma Budge died in Hamburg on 14 February 1937.
3.2 Initially Budge intended to leave her art collection to the city of Hamburg. That changed after the Nazi regime came to power in January 1933. Budge had her last wishes recorded in a will dated 5 October 1933, which was supplemented over the years by five codicils, the last of which was registered in 1936. It can be deduced from the documentation that in her will and testament Budge took into account the rise of the Nazi regime and the possible consequences. The first paragraph of her will of 5 October 1933 contains the following passage.
Gezwungen sehe ich mich zu dieser Aufhebung und zur Neuordnung durch die Veränderung meiner eigenen finanziellen Verhältnisse und der allgemeinen wirtschaftlichen und auch politischen Verhältnisse in Deutschland, welche Veränderungen es mir widersinnig entscheinen lassen, eine von mir früher zu Günsten der Stadt Hamburg angeordnete Verfügung weiter bestehen zu lassen.
Budge had provisions concerning her art collection spelled out in the sixth paragraph of the will. They include the following.
Die in meinem Hause Harvestehuderweg 12 befindlichen Sammlungen an Kunstgegenständen oder kunstgewerblichen Gegenständen gebe und vermache ich meinen Testamentsvollstreckern mit der Auflage, diese Gegestände “sei es in geschlossenen Sammlungen oder in einzelnen Stücken” an ihnen geeignet erschneinende Museen, Gewerbemuseeen oder ähnliche Institutionen in Deutschland oder in den Vereinigten Staaten von Amerika oder auch in anderen Ländern zu verteilen. Für die Auswahl derjenigen Museen, Gewerbemuseen oder sonstigen Institutionen, denen sie solche Zuwendungen machen wollen, sollen meine Testamentsvollstrecker sich des Beirates von ihnen auszuwählender, ihnen geeignet erscheinender Sachverständiger bedienen.
In a codicil dated 11 June 1934 Budge changed the paragraph about her art collection and stipulated that the executors were authorized, after consulting Albert Rothbart of New York, to donate individual items to museums or other institutions as they saw fit on the condition that the organizations concerned were prepared to exhibit the objects.
Ich hebe den Abschnitt VI meines Testaments vom 5. Oktober 1933 auf und bestimme stattdessen hinsichtlich der in meinem Hause Harvestehuderweg 12 befindlichen Sammlungen von Kunstgegenständen und Kunstgewerblichen Gegenständen das Folgende. Ich beabsichtige, über diese Gegenstände oder einzelne von ihnen noch besondere Verfügungen zu treffen. Soweit ich solche Verfügungen nicht getroffen habe, sollen die Testamentsvollstrecker berechtigt sein, nach ihren freien Ermessen und nach Beratung mit Herrn Albert Rothbart, New York, einzelne Kunst- oder kunstgewerbliche Gegenstände an Museen oder ähnliche Institutionen, zum Beispiel an das Metropolitan Museum in New York, zu verschenken, vorausgesetzt, dass diese Institutionen bereit sind die Gegenstände auszustellen.
The artworks that remained after this then had to be sold. Budge wrote as follows about how such selling had to take place.
Die dann noch übrigen Kunst- und kunstgewerblichen Gegenstände sollen meine Testamentsvollstrecker nach ihrem besten Ermessen in würdiger Weise realisieren, und hinsichtlich dieser Gegenstände nach ihren Ermessen den Zeitpunkt der Realisierung wählen können, und auch die Art und Weise, in welcher sie zu den von ihnen gewählten Zeitpunkten und an den von ihnen zu wählenden Orten zu solcher Realisierung schreiten wollen. Die Testamentsvollstrecker sollen sich dabei sachverständlich beraten lassen, zum Beispiel von einen der Inhaber der Firma Rosenbaum in Frankfurt am Main.
Eine öffentliche Verwertung der Gegenstände in Hamburg soll ausgeschlossen sein.
3.3 On 14 September 1935 the Nazi regime promulgated the Nuremberg Race Laws, which provided a formal basis for the measures against Jews that the Nazis had already widely put into practice. One of the consequences of these laws was that German Jews were deprived of their civil rights.
Budge made substantial changes to her will shortly after the promulgation of the anti-Jewish legislation in the form of a fourth codicil, dated 21 November 1935. In this codicil Budge repeated that Mr Max M. Warburg, Dr Hermann Samson, Mr Max Kronheimer and Mr Ludwig Bernstein were appointed executors. In view of the measures taken shortly beforehand against German Jews (which Budge referred to later in the document as ‘den heutigen Verhältnissen’), Budge stipulated that all executors had to be Jewish.
Für den Fall, dass nach Eintritt des Herrn Rudolf Samson als Testamentsvollstrecker sich die Zahl der Testamentsvollstrecker auf weniger als drei vermindern sollte, sollen die verbliebenen Testamentsvollstrecker Ersatzmänner ernennen, sodass immer drei Testamentsvollstrecker sich im Amte befinden. Notfalls bitte ich das zuständige Gericht um Ernennung so viel Ersatzmänner, dass drei Testamentsvollstrecker im Amt sind. Alle Testamentsvollstrecker sollen den jüdischen Religionsbekenntnis angehören.
In the fourth codicil she also announced the following four new provisions concerning her art collection.
Ich werde in besonderen Verfügungen Bestimmungen über Gegenstände meiner Hauseinrichtung und auch über Kunst- und Wertgegenstände treffen. Insoweit solche besonderen Verfügungen nicht vorhanden sein werden, bleibt die Verwertung Sache meiner Testamentsvollstrecker nach Massgabe der früher darüber getroffenen Bestimmungen. Bei der Verwertung meiner Sammlungen empfehle ich ihnen, sich nicht nur des Rates der Firma Rosenbaum, jetzt nur in Amsterdam, für die Porzellansammlung zu bedienen, sondern auch des Rates des Herrn Börner in Leipzig, insbesondere wegen der Gemälde und Stiche.
She furthermore added the following about the location of any sale.
Eine veräusserung all dieser Gegenstände innerhalb des Deutschen Reiches wird voraussichtlich nicht ratsam sein.
3.4 Emma Budge died on 14 February 1937. Aside from a few charitable institutions that she had helped to set up, as far as we know she bequeathed thirteen Jewish beneficiaries. By the time Budge died, a number of these beneficiaries had fled to foreign countries or had made preparations to do so. It emerges from a list of the component parts of the Budge estate that securities represented by far the biggest part of the assets (over 5.4 million reichsmarks), with the art holdings a long way behind in second place (716,650 reichsmarks). Most of these securities were held in the Schweizer Kreditbank in Zurich, so they were beyond the reach of the German authorities.
The four Jewish executors, the banker Max Warburg, the lawyer Dr Hermann Samson and two nephews of Budge, Max Kronheimer and Ludwig Bernstein, put Budge’s house up for sale immediately. On 11 December 1937 Budge Palace and two other buildings were acquired by the city of Hamburg. Despite the fact that Budge had stated in a codicil to her will in 1935 that it would probably not be prudent to sell her possessions inside Germany, her art collection went under the hammer in 1937 at Berlin auctioneers Paul Graupe, one of the most important auction houses to stage sales of Jewish assets in the nineteen-thirties. A pragmatic attitude was adopted by the Nazis because some art dealers were able, through their trading activities, to obtain foreign currencies, which the German regime badly needed. The Jewish Paul Graupe was an example. However, he also made plans to flee Germany because of his Jewish descent. Initially he was involved in organizing the Budge sale, but in September 1937, before the sale could actually take place, he fled to Paris, where he continued to trade in art.
The actual sale of Budge’s art collection took place on 4-6 October and 6-7 December 1937 under the supervision of Hans W. Lange, who had ‘Aryanized’ the Graupe auction house. It is stated on a ‘Versteigerungs-Niederschrift’ of 20 October 1937 that the executors Max M. Warburg, Dr Herman Samson, Ludwig Bernstein and Max Kronheimer issued instructions for the sale on 14 June 1937. During the sale, which attracted substantial international interest, 1,020 lots went under the hammer. The catalogue compiled on the occasion of the sale titled ‘Die Sammlung Frau Emma Budge † Hamburg’ describes an object under number 124 that corresponds to the currently claimed work.
124 Moses, aufrecht stehend, in weitfaltigem Gewand mit darüber hängendem, auf der rechten Schulter mit einem Knopf gehaltenen Mantel, hält mit der Linken die beiden Gesetzetafeln, die er gegen die Hüfte stemmt. Die Rechte hat er vor die Brust erhoben. Das Gewand ist über der Brust geöffnet; an den Füßen trägt er Sandalen. Einzelheiten, wie die rechte Hand und der Bart, verraten das Vorbild Michelangelos. Auf mitgegossenem achteckigem Sockel. Statuette. Bronze. H. 47,5cm. Rom, 17. Jahrh. Aus dem Einflußbereich des Alessandro Algardi (1602--1654). Tafel 33.
The catalogue also contains an image. On its website the Deutsches Zentrum Kulturgutverluste states that the work listed as lot number 124 was purchased at the sale by ‘Stavenhagen’ for 340 reichsmarks. The exact identity of this buyer called ‘Stavenhagen’ is not known. It is not possible, based on the available documentation, to establish what happened to the proceeds of the sale. The Applicant stated that the proceeds were put into a frozen account and that the Budge beneficiaries never had access to them.
3.5 As stated above, the lion’s share of the Budge estate consisted of securities and currency, which were beyond the reach of the Nazi regime in an account with the Swiss Kreditanstalt. The German authorities pushed for the transfer of foreign assets to Germany. This involved exerting pressure on the beneficiaries and executors remaining in Germany by means of withdrawing passports, arrest and seizure of the personal assets of the individual beneficiaries. After Kristallnacht (Night of Broken Glass) the position of the beneficiaries remaining in Germany became more and more perilous. One of the beneficiaries and the spouse of another beneficiary were detained in Buchenwald concentration camp. Their release was linked to willingness to cooperate with the authorities. Furthermore the domestic assets of the beneficiaries were seized. Pressure was also exerted on the Jewish executors. The Oberfinanzpräsident of the Amtsgericht Hamburg issued instructions to have executors Kronheimer and Bernstein, who remained outside Germany, replaced by two other Jewish executors, Dr Rudolf Warburg and Dr Manfred Zadik, who were in Germany and therefore within the Nazi’s sphere of influence. In the end Zadik and Warburg were to be replaced in the autumn of 1938 by the lawyer Dr Ernst Blum of Lucerne and Gottfried Francke of Hamburg, accountant and former tax advisor to Emma Budge. Neither was Jewish. With Francke’s help in the end the Nazis were to succeed in getting two-thirds of the assets transferred from Switzerland to Germany. Allegedly none of the assets were transferred to the Budge beneficiaries.
After the Second World War Gottfried Francke was to remain an executor of the Budge estate until his death in 1956. Attempts by individual Budge beneficiaries to obtain compensation from the German state or attempts to get artworks restituted got nowhere thanks in part to his efforts.
3.6 The claimed work is a cast bronze sculpture with a dark brown patina, representing ‘Moses’. The work is 47.5 cm high, dated 1525 to 1608, and attributed to Alessandro Vittoria (1525-1608). In 1964 the work was donated to the Museum by Dirk Hannema, who established the Stichting Hannema de Stuers Fundatie in 1957. On 21 January 1964 Hannema donated his entire art collection of approximately 3,200 objects to the Museum. The Museum has stated that no provenance research was conducted at the time.
Hannema had acquired the work during the 1948-1952 period from his cousin Dr Charles Hubert ridder de Stuers of Brussels. It is not known how Hannema acquired the work. It is similarly not known how and when the work came into the possession of De Stuers. The work is illustrated and described in ‘Kunst in Oude Sfeer. Oude en moderne kunst in het kasteel Weldam, Twente’ by Dirk Hannema, published in 1952. The books states about the provenance that the sculpture, ‘... was vroeger in de verzameling Emma Budge te Hamburg (veiling Sept. 1937, Graupe Berlijn cat. No 124 met afb.) en Ch. de Stuers’ [‘... was formerly in the collection of Emma Budge of Hamburg (sale Sept. 1937, Graupe Berlin cat. No 124 with fig.) and C. de Stuers’].
In 1997 the object was valued at NLG 350,000 subject to authenticity.
4. The Positions of the Parties
4.1 The Applicant contends that after Budge’s death in 1937 her art collection, including the currently claimed work, went under the hammer at a forced sale. According to the Applicant the proceeds were put into a frozen account and as a result the Budge beneficiaries never had access to them. The Applicant is requesting restitution of the claimed work, and refers to various restitutions of artworks from the Budge collection in previous years in different countries.
4.2 On the basis of its provenance investigation of its collection under the auspices of the Museum Acquisitions project, in 2012 the Museum contacted the Applicant’s lawyer and proposed submitting the case to the Restitutions Committee. The Museum stated with regard to the work that it is a fine object for the period it was made in, but it is not crucial in the context of the overall collection.
5. The Committee’s Task
5.1 On the grounds of article 2 paragraph 2 of the Decree Establishing the Restitutions Committee, the Committee is tasked at the request of the parties with issuing an opinion about disputes relating to the return of items of cultural value between the original owner who involuntarily lost possession as a result of circumstances directly linked to the Nazi regime, or his or her heirs, and the current owner, not being the State of the Netherlands. This opinion is a binding opinion within the meaning of article 7:900 of the Dutch Civil Code
5.2 The committee advises on the basis of the yardsticks of reasonableness and fairness. This means that first of all an assessment is made of whether the requirements have been met for establishing that it is highly likely that the original owner was indeed the owner and that it is sufficiently plausible that he or she lost possession of the artwork involuntarily as a result of circumstances directly related to the Nazi regime. Advising on the basis of the yardsticks of reasonableness and fairness furthermore provides scope to take into account how the current owner acquired the object and other circumstances and to weigh up the interests of the different parties involved.
5.3 In its advisory role pursuant to article 2, second paragraph of the Decree Establishing the Restitutions Committee, the Committee—in accordance with article 3 of the Regulations—may in any event take account during its considerations of the circumstances in which possession of the work was lost, the degree to which the parties requesting restitution have made efforts to recover the work, as well as the timing and the circumstances of the acquisition of possession by the current owner and the investigation conducted by the current owner before the acquisition. It may in addition take account in its considerations of the respective importance of the work to both parties and of the public art stock. Nationally and internationally accepted principles, such as the Washington Principles and the government’s guidelines concerning the restitution of looted art, are included in the considerations in so far as they, in the Committee’s opinion, are correspondingly applicable in the specific case.
This broad assessment framework also does justice to the Washington Principles, according to which the restitutions policy must be aimed at achieving ‘a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case’.
6. Assessment of the Dispute
6.1 The Applicant has asserted he represents the rightful claimants to Budge’s estate. To this end he submitted a ‘Testamentsvolstreckerzeugnis’ of 28 December 2007, issued by the Amtsgericht Hamburg, in which it is stated that he was appointed ‘Testamentsvollstrecker’ (executor) with regard to Budge’s estate. In the Committee’s opinion it has thus been shown sufficiently that the Applicant represents all those entitled to the assets of Emma Budge.
6.2 The Committee has satisfied itself that the dispute between the Applicant and the Museum has not already been definitively dealt with. The Committee has not found a legal procedure or a judicial ruling relating to the work. Nor has it emerged that the Applicant previously explicitly renounced his rights to the work. The Committee therefore considers the parties and their request to be admissible.
6.3 Given the Committee’s task as referred to under 5.2, it must be highly plausible that the currently claimed work, as the Applicant contends, belonged to Budge. In this regard the Committee finds as follows. As stated in 3.4, Budge owned an extensive art collection, which after her death in 1937 was sold at auction by the Graupe auction house. The catalogue compiled on the occasion of this auction titled ‘Die Sammlung Frau Emma Budge † Hamburg’ describes an object under number 124 with illustration that the Committee accepts, in view of the image and the description, is the currently claimed work. The Committee also takes into consideration that it emerges from information provided by the Museum that the currently claimed work is from the Budge collection and went under the hammer at auctioneers Graupe in 1937. In view of the above the Committee deems it highly plausible that the work belonged to Budge when she died in 1937.
6.4 The Committee finds as follows with regard to the circumstances in which Budge’s estate lost possession of the work in 1937. Initially Budge intended to leave her art collection to the city of Hamburg. She revised this intention after Adolf Hitler came to power in January 1933. In her will of 5 October 1933 Budge gave the political situation in Germany as one of the reasons for doing so. Instead she stipulated that the executors were authorized to donate individual objects to museums or other institutions as they saw fit. In June 1934 she added that thereafter the artworks remaining had to be sold, but a public sale in Hamburg was ruled out. After promulgation of the Nuremberg Race Laws on 14 September 1935, Budge stipulated in a codicil of 21 November 1935 that all her executors had to be Jewish. As regards the sale of the works, she had a comment included to the effect that selling the works in Germany was not advisable.
In the Committee’s opinion these changes in the provisions in the will about Budge’s art collection cannot be considered in isolation from the rise to power of the Nazi regime. Neither can the loss of possession of the currently claimed work in the sale at Graupe in 1937 be considered as voluntary. In this connection the Committee points out that Budge, in addition to four foundations, had thirteen natural persons as beneficiaries. They were all of Jewish descent. By the time Budge died, a number of them had already fled to foreign countries or had made preparations to do so. In so doing they became obliged to pay Reichsfluchtsteuer (reich capital flight tax), a measure introduced in 1931 in order to counteract the flight of capital that affected primarily people of Jewish descent after Hitler came to power. This measure as well as other anti-Jewish measures, including the Nuremberg Race Laws, meant that the freedom with which Budge could decide what was to happen to her art collection after her death was constrained to such an extent that it is not possible to say that she had free choice. Finally the Committee points out that Budge’s art collection was sold at auction in Germany, whereas in the codicil of 21 November 1935 she had advised against that. In view of the facts and circumstances, the Committee comes to the conclusion that the loss of possession of the work by Budge’s estate should be designated as involuntary, caused by circumstances directly related to the Nazi regime.
6.5 The Committee now comes to weighing up the interests of the parties in the restitution or retention of the work. In so doing the Committee takes into account that Hannema, the founder of the Museum, donated the work together with his entire art collection to the Museum in 1964. The Committee also takes into consideration that the Museum has stated that the work is not crucial in the context of the collection as a whole. Consequently the Museum’s interest in retaining the work can be considered modest. On the other hand there is the interest of the Applicant, who is acting on behalf of the Budge estate, which lost possession of the work involuntarily as a result of circumstances directly associated with the Nazi regime. In view of this the Committee considers the interest of the Applicant in restitution of the work to have greater weight than the Museum’s interest in retaining it.
6.6 The Committee sees no reason to link handing over the work to something in return from the Applicant. In this regard it is important that the Museum obtained the work in 1964 for nothing. There are similarly no grounds for making allowances in respect of the proceeds of the sale in 1937. The Committee agrees with the Applicant that it is plausible that Budge’s beneficiaries did not have access to these proceeds.
6.7 On the grounds of the foregoing the Committee will advise restitution of the work to the Applicant.
The Committee advises the Stichting Hannema-de Stuers Fundatie to restitute the sculpture ‘Moses’, attributed to Alessandro Vittoria, to AA for the benefit of the estate of Emma Ranette Budge-Lazarus.
This binding opinion was issued on 16 April 2018 by A. Hammerstein (Chair), J.H.W. Koster, J.H. van Kreveld, H.M. Verrijn Stuart (Vice-Chair), G.N. Verschoor and C.C. Wesselink, and signed by the Chair and the Secretary.
(A. Hammerstein, Chair) (M.C.J. Kooij, Secretary)