Drawing Jewish Quarter in Amsterdam by Max Liebermann

Binding opinion regarding the dispute about restitution of the drawing Jewish Quarter in Amsterdam, by Max Liebermann, currently in the possession of Amsterdam City Council.

Recommendation number: 
RC 3.172
Type: 
Binding expert opinion
Publishing date: 
16 April 2019
Period loss of possession: 
unknown
Private owner/art dealer: 
Private individual
Location of loss: 
Outside of The Netherlands

Binding opinion

regarding the dispute between

AA, of XX, in his capacity as executor of BB’s estate;
CC
, of XX;
DD, of XX, in his capacity as executor of EE's estate;
FF, of XX,
all represented by Ellen R. Werther, lawyer of New York,
GG,
of XX, represented by David J. Rowland, lawyer of New York;
(hereinafter referred to as the Applicants),

and:

Amsterdam City Council (hereinafter referred to as the City Council),
represented by the director of the Amsterdam City Archives, HH.

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 drawing Jewish Quarter in Amsterdam by Max Liebermann (hereinafter referred to as the drawing), has been in the possession of the City Council since1964. The drawing is held by the Amsterdam City Archives. The Applicants assert that the drawing belonged to the collection of Dr Gustav Kirstein (1870-1934) and his wife Therese Clara Stein (1885-1939), and after their deaths it belonged to their daughters Gabriele Heidi Lotte Kirstein (1905-1957) and Marianne Erika Kirstein (1907-1981). According to the Applicants, possession of the entire Kirstein Collection, including the currently claimed drawing, was lost as a result of the anti-Jewish measures taken by the Nazis. The Applicants asked the City Council to restitute the drawing. The City Council and the Applicants (hereinafter referred to jointly as the parties) submitted the dispute to the Restitutions Committee for investigation and a binding opinion

2.         The Procedure

The parties asked the Committee in separate letters, dated 23 May 2017 from the City Council and dated 12 July 2017 from the Applicants, to issue a binding opinion under the terms of article 2 paragraph 2 of the Decree Establishing the Restitutions Committee. The Minister of Education, Culture and Science informed the Committee of her agreement to this case being handled by the Committee. Pragmatic reasons prompted the intervention of the Minister. The State of the Netherlands has not become a party in the procedure at any time.

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 2 July 2018. The parties responded to it.

3.         The Facts

The Committee based its considerations on the following facts.

Kirstein Family

3.1       Gustav Kirstein (1870-1934) was married to Therese Clara Stein (1885-1939). Both were of Jewish descent. The couple lived in Leipzig and had two daughters - Gabriele Heidi Lotte Kirstein (1905-1957) and Marianne Erika Kirstein (1907-1981). From October 1899, Gustav Kirstein and his partner Arthur Seemann ran the renowned art publisher E.A. Seemann. Kirstein was a friend and patron of many leading artists of his day, including Max Liebermann, Lovis Corinth and Max Klinger. During his lifetime Gustav Kirstein accumulated a large art collection by such artists as Max Klinger, Max Liebermann, Edouard Manet, Adolph Menzel, Lovis Corinth, Käthe Kollwitz, Georg Kolbe, Carl Spitzweg and Hans Thoma.

3.2       The Kirsteins were affected by anti-Jewish measures after the Nazis came to power in Germany in 1933. Gustav Kirstein was forced to step down from various positions and to leave the publishing house he established. Afterwards Gustav Kirstein continued part of the publishing business independently.
            Gustav Kirstein died on 14 February 1934. His widow took over the publishing business until it was put under an administrator by the Nazis in 1938. The Nazis sold the business in 1942. In the spring of 1939 Clara Kirstein was compelled to hand over her family jewellery and silver. Her two daughters had meanwhile fled to the United States because of their persecution by the Nazis. Clara Kirstein also wanted to flee there. She had to pay a large sum in taxes in order to do so. She therefore sold part of her art collection. The day before Clara Kirstein planned to leave Germany, her passport was seized and she was summoned to report to the Gestapo. She committed suicide on 29 June 1939. Her two daughters were her heirs.

Fate of the Art Collection

3.3       It can be concluded from the documentation that in 1939 and thereafter the art collection built up Gustav Kirstein was sold or offered for sale. A part went under the hammer on 28 April 1939 at the C.G. Boerner auction house and gallery in Leipzig. After Clara Kirstein's death, the Jewish executor of her estate, Dr Richard Marcuse, sold a number of artworks to the Bildermuseum in Leipzig. He had another part out into storage at the Boerner auction house.
            A further part of the art collection was inventoried by the Hans Klemm auction house in Leipzig. This auction house was involved in the sale of Jewish possessions. The German publicist Thomas Ahbe described this auction house's methods using Kirstein's possessions as an example.
Wie die deutschen Juden um ihren Kunstbezitz gebracht wurden, illustriert eine Aufstellung des Auswanderergutes von Klara Theres K.
[Clara Therese Kirstein, RC] Darunter befindet sich auch eine “Liste der jüdischen und entarteten Kunstwerken aus dem Nachlass von Frau Claire Kirstein”. Der Verfasser führt Bilder von Lovis Corinth, Max Liebermann und Otto Engel auf. Am Ende der Liste wird der Klara Theres K. bescheiden: “Die hier aufgeführten Kunstwerken sind in Deutschland unverkäuflich und deswegen wertlos”.

3.4       On the ‘Liste der jüdischen und entarteten Kunstwerken aus dem Nachlaß von Frau Claire Kirstein’ (hereinafter referred to as the Klemm list) referred to by Ahbe there are several hundred works, primarily drawings and prints, with specific mentions of the artists Lovis Corinth, Otto Engel, Berthold Kirstein and Max Liebermann. In many cases there is no description of individual works, with only the number of them being listed. This is also the case with most of the works by Max Liebermann, which are only specified as a group on the Klemm list.

            Max Liebermann: Alsterbassin.Oel
                                    Netzeflickerin.Oel
                                    Familienkreis.Oel
                                    Kleines Kind.Oel
                                    9 Pastelle
                                    Porträit Kirstein.Kreide
                                    1o8 Blatt Zeichnungen
                                    119 Blatt Graphik

It is not clear whether the drawings on the list were actually auctioned off by Klemm because of the auction house's comment about the works concerned being unsaleable in Germany.

3.5.      On 25 November 1941 the Nazis promulgated the eleventh regulation under the Reichsburgergesetz (Reich Citizenship Act), which stipulated that all Jewish refugees who had left Germany were stripped of their citizenship and their possessions reverted to the German state. The regulation furthermore stipulated that all possessions had to be reported to the Oberfinanzpräsident Berlin-Brandenburg. In a letter dated 2 May 1942 executor Marcuse sent a detailed specification of the contents of Clara Kirstein's estate. He also stated that the artworks previously lodged with C.G. Boerner were still there. In 1943 the Oberfinanzpräsident Berlin-Brandenburg issued instructions to have the remaining artworks in Kirstein's collection sold. According to the Applicants some of the artworks then went under the hammer at Boerner. Other works are said to have been sold privately.

After the War

3.6       On 23 December 1958 a lawyer, Dr Boekle from Tübingen, submitted a compensation claim to the West German government on behalf of Marianne Baer-Kirstein and the heir of her late sister Gabrielle Jacobsen-Kirstein on the grounds of the Bundesrückerstattungsgesetz (BRüG, Federal Restitution Law), which came into effect in mid-1957, concerning Clara Kirstein's stolen possessions. The request for compensation related, among other things, to silverware, household effects, the publishing business and 'Kunstgegenstände’. In a previous letter dated 18 December 1958 Boekle wrote that after her death Clara Kirstein had left a ‘beträchtliches Vermögen’ of which ‘ihre Kinder und Erben nichts erhalten haben. Das gesamte Vermögen ging also verloren’. Boekle wrote that the art collection was still present after Clara Kirstein's death, but it was not known where the individual artworks ended up afterwards.

Herr Dr. Kirstein besass eine bekannte und wertvolle Sammlung von Kunstgegenständen, u.a. Bilder von Menzel, Corinth, Liebermann, Käthe Kollwitz sowie Skulpturen von Kolbe u.a. Diese Sammlung war beim Tode von Frau Kirstein noch vorhanden. Es ist noch nicht geklärt, wohin die einzelnen Gegenstände gekommen sind. Wir sind dabei, weitere Nachforschungen anzustellen, und werden weitere Unterlagen nachreichen.

Boekle wrote the following in a letter dated 11 July 1961.
Was die Kunstgegenstände anbetrifft, so handelte es sich um eine ausserordentlich wertvolle Sammlung. Es erscheint deshalb ausgeschlossen, dass diese samt und sonders in Leipzig geblieben sind. Teilweise befanden sich darunter auch Werke der sogenannten nichtarischen Kunst. Insoweit muss angenommen werden, dass sie vernichtet worden sind. Ich habe vergeblich versucht, Nachforschungen über den Verbleib dieser Kunstgegenstände anzustellen.
Bisher konnte ich vom Kläger Einzelheiten nicht erfahren.

Boekle did succeed, however, in tracking down a notebook in the possession of Gustav Kirstein's former secretary, Mrs Bungter, describing the status of the collection in January 1917.
Dagegen ist es mir gelungen, ein Verzeichnis der Sammlung Dr. Kirstein zu erhalten. Die frühere langjährige Sekretärin von Herrn Dr. Kirstein, Frau Bungter, die heute in Leipzig lebt, hat mir ein Oktavheft übersandt, das sie noch in Besitz hatte und das ein Verzeichnis der Sammlung nach dem Stand vom 10.1.1917 enthält.

According to Mrs Bungter the art collection had not changed materially since 1917. Boekle stated there was no reason for Kirstein to sell works from his collection because his financial position was sound.

Frau Bungter versicherte mir in einem Schreiben, dass sich ihrer Ansicht nach der Bestand nicht wesentlicht verändert habe. Das dürfte auch der Erfahrung entsprechen, da Herr Dr. Kirstein ja in guten finanziellen Verhältnissen lebte und keinen Grund hatte, Bestandteile seiner Sammlung zu veräussern. Eine Durchsicht des Verzeichnisses zeigt, dass es sich um ausserordentlich wertvolle und teilweise berühmte Werke handelte....

The request for compensation was ultimately rejected in 1965.

The Currently Claimed Drawing

3.7       Jewish Quarter in Amsterdam by Max Liebermann is a pencil drawing measuring 300 x 222 mm and is dated to around 1876. It depicts Rapenburgwal. The following is known about the drawing's provenance.
            A photograph of the drawing was found in the Netherlands Institute for Art History (RKD) with the caption, ‘Max Liebermann, Judenviertel in Amsterdam, Bleistiftzeichnung, 1876’. ‘Kunst und Künstler, Oct. 1913’ is written by hand on the photograph. This is a reference to the magazine Kunst und Künstler published by Paul Cassirer in Berlin.
            ‘Verzeichnis der Sammlung aufgenommen 10/1.17’ is written on the title page of an inventory of the Kirstein Collection that Boekle referred to in his letter of 11 July 1961. As stated above this inventory was found after the war in the possession of Kirstein's secretary. Of the approximately forty Max Liebermann drawings on the list, one is described as ‘Amsterdam 76’.
            The drawing is depicted in Erich Hancke's 1923 book ‘Max Liebermann’ with the title ‘Amsterdamer Gracht, um 1876’, and stating regarding ownership Besitzer: Gustav Kirstein, Leipzig’.

3.8       On 3 December 1964 the currently claimed drawing went under the hammer at the Math. Lempertz’sche Kunstversteigerung in Cologne. The identity of the seller is not known. It can be seen, however, from the ‘Verzeichnis der Besitzer’ that this seller put only one lot into the sale, i.e. the currently claimed drawing. The sale catalogue has the following entry.

            403      AMSTERDAMER GRACHT             1 200.--
                                  Bleistiftzeichnung. 29 x 20 cm. Bezeichnet unten rechts: Judenviertel in
                                                    Amsterdam -- Unter Glas gerahmt.

                                   Sammlung: Dr. Gustav Kirstein, Leipzig.

                                   Abbildungen:
                                   Kunst und Künstler (Berlin 1914) Jahrgang XII, Seite 11.

                                   Erich Hancke. Max Liebermann (Berlin 1923) Seite 277.

                                  

The artwork was purchased at the sale by Amsterdam City Council for DM 1,300 after the City Council had made a bid in a letter. The purchase was financed by the Van Eck Fund.

4.         The Positions of the Parties

4.1       The Applicants contend that the currently claimed drawing was part of the art collection built up by Gustav and Clara Kirstein. Although it is not known precisely when and how Clara Kirstein or her daughters lost possession of the currently claimed drawing, according to the Applicants it can be assumed that ownership of Gustav and Clara Kirstein's entire art collection was lost as the result of their persecution by the Nazis. The Applicants have been attempting since around 2000 to find out where this collection is and to get it back. The Applicants describe their interest in restitution as ‘restoring ownership interests’.

4.2       The City Council states that the provenance of the currently claimed drawing was not known to it until it was approached by the Applicants. The City Council stresses that even if involuntary loss of possession is only slightly plausible, it will gladly cooperate in restitution of the drawing or come to an arrangement to purchase the drawing again. The City Council wrote the following about the importance of the drawing to it.
Het documenteren van het Joodse leven in Amsterdam is een belangrijk thema in de collecties van het Stadsarchief. Veel locaties in de voormalige Jodenbuurt zijn door de Tweede Wereldoorlog onherkenbaar veranderd of definitief verdwenen. In het algemeen zijn kunstenaars die het Joodse leven uitbeelden van groot belang voor onze collectie. Daarbinnen is Liebermann als zeer belangrijke buitenlandse kunstenaar die Amsterdam uitbeeldt zeer waardevol. Het Stadsarchief verzamelt zijn Amsterdamse werk (grafiek en tekeningen) en bezit een klein aantal tekeningen van zijn hand waarvan dit de vroegste is (het is ook een van de vroegste in Nederland gemaakte werken van Liebermann), gemaakt tijdens een lange studiereis naar Amsterdam waar bij onder meer het August Allebé door de Jodenbuurt wandelde. De tekening ‘Jüdenviertel in Amsterdam’ waarop de Rapenburgerwal en bewoners en passanten zeer precies en gedetailleerd is vastgelegd, is de enige negentiende-eeuwse afbeelding van deze locatie in onze collectie.
[Documenting the Jewish community and its way of life in Amsterdam is an important theme in the city archives' collections. Many locations in the former Jewish quarter changed beyond recognition or definitively disappeared as a result of the Second World War. In general, artists who depict the Jewish community and its way of life are very important to our collection. In that context Liebermann, as a major foreign artist who portrayed Amsterdam, is very valuable. The City Archives collect his Amsterdam work (prints and drawings) and own a small number of his drawings, of which this is the earliest (it is also one of the earliest of Liebermann's works made in the Netherlands). It was drawn on a long study trip to Amsterdam during which, among other things, he strolled through the Jewish quarter with August Allebé. The drawing ‘Jewish Quarter in Amsterdam’, in which Rapenburgerwal, residents and passers-by are represented with great precision and detail, is the only nineteenth-century image of this location in our 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 in its opinion 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 opinion of the respective importance of the work to both parties and of the public art stock. Internationally and nationally accepted principles such as the Washington Principles and the government’s policy guidelines concerning the restitution of looted art are incorporated in the assessment.
            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 Applicants claim that they are jointly entitled to Clara Kirstein's assets. In the Committee's opinion they proved this sufficiently through the inheritance-law-related documentation they submitted.

6.2       On the grounds of the drawing's provenance information described in 3.7 and 3.8 and the various references in it to Kirstein and the Kirstein Collection, it is sufficiently plausible that the drawing belonged to Gustav Kirstein's collection. In view of the reference to it in Hancke's 1923 book, it can be assumed that in that year in any event it was still in the collection but in 1964, after its acquisition by the City Council, it no longer was. The Committee now addresses the question of whether possession of the drawing during the intervening period was lost involuntarily as a result of circumstances directly linked to the Nazi regime. Based on the facts as stated in 3.3, 3.4 and 3.5, in the Committee's opinion it can be concluded that Kirstein's art collection was sold or confiscated during the period starting in 1939 as a result of persecution by the Nazis. In this connection reference can also be made to the statement by the lawyer Boekle that Clara Kirstein's entire wealth was lost after her death and that her children received none of it.
            The question of whether the currently claimed drawing still belonged to the Kirstein Collection in 1939 is less easy to answer. There are no indications that the drawing was sold prior to 1939. There are, on the other hand, the following indications that the drawing still belonged to the collection in 1939:
- the statement by Kirstein's former secretary, Mrs Bungter, that the art collection had not changed materially since 1917;
- the statement by the lawyer Boekle that there was no reason for Kirstein to sell works from his collection;
- according to the Klemm list, in 1939 there were many works by Liebermann in Kirstein's collection, which indicates that the collection was still largely intact at that moment.
            Given these indications and bearing in mind, to quote the Washington Principles, ‘unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era’, in the Committee's opinion it is sufficiently plausible that possession of the drawing was lost as a result of circumstances directly linked to the Nazi regime.

6.3       The City Council acquired the drawing at a sale in 1964. Given the entry in the sale catalogue, it was known at the time of the acquisition that the drawing came from the Kirstein Collection. The Committee considers it unreasonable to hold that against the City Council in its assessment, however, because nothing more was known about the drawing's origin than that it came from the Kirstein Collection, and at the time of the acquisition there were not yet any requirements on museums relating to robust proof of origin or any obligation to conduct an investigation. Under Dutch law it has to be assumed that the City Council is currently the drawing's owner. The City Council has pointed out the drawing's important place in the City Archives' collection, as described in 4.2.

6.4        The Committee is entitled to consider all the interests when making an assessment on the basis of the yardsticks of reasonableness and fairness. In this case considerable weight is given to the way in which possession of the work was lost. The Applicants are mostly descendants of Gustav and Clara Kirstein, who built up a sizeable art collection, including the currently claimed drawing. Its possession was lost involuntarily as a result of circumstances directly related to the Nazi regime. The Committee finds that this outweighs the interests of the City Council in retaining the drawing. This leads to the conclusion that the Committee will advise restitution of the drawing to the Applicants.

6.5       This brings the Committee to the question of whether additional requirements should be linked to handing over the drawing in connection with the City Council's explicit wish for an arrangement under which it can purchase the drawing again. The Committee asks the parties to consider making such an arrangement if they want to.
            Another question is whether something in return from the Applicants should be linked to surrender of the drawing. It is important in this regard that the City Council purchased the work in 1964 for a sum of NLG 1,352.75 and that there are no indications that the City Council did not act in good faith at the time. The Committee takes the view that the purchase price was a relatively modest sum, and that the City Council has after all had the benefit of the drawing since 1964. In these circumstances the Committee sees no reason to link surrender of the drawing to something in return from the Applicants.

7         On the grounds of the foregoing the Committee will advise restitution of the work to the Applicants.

BINDING OPINION

The Committee advises the City Council of Amsterdam to restitute the drawing Jewish Quarter in Amsterdam by Max Liebermann to the Applicants.

This binding opinion was issued on 16 April 2019 by A. Hammerstein (Chair), J.H.W. Koster, J.H. van Kreveld, D. Oostinga, E.H. Swaab (Vice-Chair) and C.C. Wesselink, and signed by the Chair and the Secretary.

(A.  Hammerstein, Chair)                               (E.J.A. Idema, Secretary)