A bronze situla and a bronze candelabrum
Binding opinion regarding the dispute about the return of a bronze situla and a bronze candelabrum, currently in the possession of Rotterdam City Council
regarding the dispute between:
AA, living in XX,
BB, living in XX,
CC, living in XX,
DD, living in XX,
the association EE, with its registered office in XX,
the foundation FF, with its registered office in XX,
and the foundation GG, with its registered office in XX,
represented by D.J. Rowland, lawyer in New York, United States,
(hereinafter referred to as the Applicants),
Rotterdam City Council
represented by HH, lawyer (hereinafter also referred to as the City Council),
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
In this dispute the Applicants and the City Council, (hereinafter also referred to as the parties) asked the Committee for a binding opinion. The City Council has been the owner of a bronze situla and a bronze candelabrum (hereinafter also referred to as the claimed objects) since 1994. These objects are part of the collection of Museum Boijmans van Beuningen (hereinafter referred to as the Museum). The Applicants contend that both objects were part of the collection of the Jewish pharmacist Emanuel Vita Israël (1873-1940, hereinafter also referred to as Vita Israël) of Amsterdam and after his death they were the property of his heirs until 5 November 1940. The Applicants state that they are the rightful claimants to the estate of Vita Israël and they claim restitution of both objects on the grounds of their contention that there was involuntary loss of possession as a result of circumstances directly associated with the Nazi regime.
2. The Procedure
The Applicants asked the Committee for a binding opinion in a letter of 6 February 2019. The City Council asked the Committee for a binding opinion in a letter of 18 April 2019. The Minister of Education, Culture and Science (OCW) agreed to the Committee issuing a binding opinion. The parties declared in writing that they would submit to the Regulations for the Binding Opinion Procedure adopted by the Committee 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, as last amended on 28 January 2019 (hereinafter referred to as the Regulations) and would accept the Committee's opinion as binding. When asked, the parties explained their request for a binding opinion. The Applicants did this in letters of 6 February 2020 and 5 March 2020, and the City Council in a letter of 4 March 2020. On the grounds of these responses the Committee decided not to have additional research conducted by the Second World War and Restitution Applications Expertise Centre.
The Committee took note of all the documents submitted by the parties. The relevant information from those documents, as well as from the Committee’s file on the binding opinion RC 3.135 Vita Israël / Nijmegen City Council issued on 20 July 2015, is contained in the overview of the facts of 11 May 2020 prepared by the Committee. The Applicants responded to it in a letter of 15 May 2020. The City Council responded in a letter dated 29 May 2020.
Dr J.F. Cohen assisted the Committee in this case as an advisor.
3. The Facts
In this procedure the Committee based its considerations on the following facts.
3.1 Emanuel Vita Israël, the son of a diamond dealer, was born on 21 February 1873. From 1896 Vita Israël ran a pharmacy at Muiderstraat 14 in Amsterdam. Vita Israël married Leonore Fanny Frederika Jacobs (1873-1943, hereinafter also referred to as Leonore Jacobs) in 1902 after making a prenuptial agreement. The couple had two sons. In 1938 the older son, Joost Vita Israël (1903-1944) married Catharine Magdalena Frederika Borghmans (1904-1998, hereinafter also referred to as Catharine Borghmans) in community of property. They had two daughters, CC (born in 1939, one of the Applicants) and Jacqueline Charlotte (1940-1973). In 1934 the younger son, Gerrardus Vita Israël (1905-1943) married Esther van Gelder (1899-1943) in community of property. This couple had no children.
Vita Israël committed suicide on 15 May 1940, shortly after the German invasion. The only members of his family to survive the war were Catharine Borghmans, who was not of Jewish descent, and both her daughters. Leonore Jacobs was interned in Westerbork transit camp on 19 May 1943. This was followed on 1 June 1943 by deportation to Sobibor, where she was murdered on or around 4 June 1943. Joost Vita Israël was interned in Westerbork transit camp during a period in the spring and summer of 1943 and died from meningitis in Amsterdam on 13 February 1944. Gerrardus Vita Israël and his wife Esther van Gelder were interned in Westerbork transit camp on 26 May 1943. On 8 June 1943 the couple were deported to Sobibor, where they were murdered on or around 11 June 1943.
3.2 Vita Israël was a passionate art lover and had a collection of paintings and antiquities, to which he gave members of the public access in period rooms in his home above the pharmacy. He also had a collection of Judaica, items from which he lent for exhibitions staged by the Genootschap voor de Joodsche Wetenschap in Nederland. Vita Israël played an important part in the Portuguese-Jewish Congregation. He was one of the founders of the Jewish Historical Museum (JHM), which opened in 1932 and to which he lent various items from his collection.
In a will drawn up on 30 June 1939 before S. Teixeira de Mattos, at the time a notary in Amsterdam, Vita Israël revoked all previous wills made by him. In the will concerned he bequeathed a life interest in one third of his estate to his wife and he appointed his two sons as his only beneficiaries. Vita Israël stipulated that his collection of antiquities had to be auctioned off within six months of his death.
‘Tenslotte heeft de testateur verklaard aan zijn erfgenamen, aan de vruchtgebruikster en aan den of de in functie zijnde(n) uitvoerder of uitvoerster zijner uiterste wilsbeschikkingen de uitdrukkelijke verplichting op te leggen, om de tot zijn nalatenschap behoorende antiquiteiten binnen zes maanden na zijn overlijden in publieke veiling te verkoopen’
[‘Finally the testator declared to his beneficiaries, to the usufructuary and to the executor or executrix, or the person in the capacity thereof, of his last will that he imposes the express obligation to sell at public auction the antiquities belonging to his estate within six months after his death.’]
There is no comparable provision in his previous wills.
3.3 After Vita Israël's death on 15 May 1940, on 10 June 1940 the dealer J.A. van Bever prepared a private valuation report of the movable goods belonging to his estate. Among other things, this report provides an overview of the antiquities in the premises at Muiderstraat 14 and 16 in Amsterdam. The report lists among other things two antique bronze situlas and various antique bronze candle sticks and candelabra, but contains no illustrations.
In accordance with the aforementioned testamentary provision, Vita Israël's antiquities, with a few exceptions, were sold at auction within six months of his death. Between 5 and 7 November 1940, 445 lots from this collection went under the hammer at auctioneers Frederik Muller & Co. The description of lot number 196 in the sale catalogue is as follows:
‘196 Ronde bronzen wijwater-emmer naar onderen smal toeloopend met 2 randen, voorzien van een kruismotief, het gesmeed ijzeren hengsel gevat in twee engelenkopjes. – XVIe eeuw – Hoog 23.5 cent.’
[‘196 Circular bronze situla tapering downwards with two bands, bearing a cross motif, the forged iron handle is held in two cherub heads. – 16th century – Height 23.5 cm.’]
Lot number 198 is described as follows:
‘198 Gothische bronzen tweearmige kandelaar op ronden voet met drie pootjes. Bruine patine. – Xve eeuw. – Hoog 22 cent.
Zie de afbeelding.’
[‘198 Gothic bronze two-branched candelabrum on a round base with three feet. Brown patina. – 15th century – Height 22 cm.
See the illustration.’]
As stated in the description, the sale catalogue contains an illustration of the candelabrum.
According to the City Council, the currently claimed candelabrum can be seen in a photograph of the interior van Vita Israël’s home in Amsterdam. The photograph, which is from the Amsterdam City Archives, was submitted by the City Council.
3.4 The currently claimed bronze situla and bronze candelabrum were given to the City Council in 1994 by Edith Frederiks (1923-2012) as part of the collection of her father J.W. Frederiks (1889-1962; hereinafter referred to as Frederiks). The two objects have been on loan to the Museum since 1968. The situla’s inventory number is ‘KB 78’ and that of the candelabrum is ‘KA 118’. The City Council submitted copies of the inventory cards drawn up by the Museum for both objects. Both inventory cards give (‘Eig.’) ‘Coll. Frederiks’ [(‘Owner’) Frederiks Collection] as the owner and there is a reference under the heading ‘Literatuur’ [‘Literature’] to a Frederik Muller sale catalogue of November 1940, lot numbers 196 and 198. The provenance given on the candelabrum’s inventory card is: ‘Afkomstig: verz. E. Vita Israels, Amsterdam’. [‘Origin: E. Vita Israel Collection, Amsterdam’.] The provenance given on the situla’s inventory card is: ‘Verz. E. Vita Israel, Amsterdam. Gekocht: Amsterdam nov. 1940’ [‘E. Vita Israel Collection, Amsterdam’. Purchased: Amsterdam November 1940’]. There is a handwritten note ‘60/290 Frederiks’ in front of lot number 198 in a copy of the sale catalogue submitted by the City Council. There is a handwritten note ‘Fred’ between lots numbers 196 and 197.
The Museum researched the provenance of both objects in the context of the investigation conducted under the auspices of the Netherlands Museums Association into museum collections in connection with looting, confiscation or forced sale during the 1933-1945 period. In 2018 the results prompted the Museum to contact the Applicants’ lawyer. Both objects are referred to in the publication ‘Omstreden verleden. Museum Boijmans Van Beuningen en de Tweede Wereldoorlog’ [‘A Controversial Past: Museum Boijmans Van Beuningen and the Second World War’] (2018).
3.5 No indications were found that the Vita Israël family made efforts after the war to regain possession of the artworks sold at auction at Frederik Muller & Co. in November 1940, or to obtain compensation for the loss of their possession. In so far as it has been possible to check, no objects were registered as missing by the family or its representatives with the Stichting Nederlands Kunstbezit (Netherlands Art Property Foundation, SNK). There is no management file relating to the Vita Israël family in the SNK archive.
However, in 2001 and 2007 items from two Dutch museums, the aforementioned JHM and the Gemeentemuseum Den Haag (GMDH, currently called the Kunstmuseum Den Haag), were handed over to the Vita Israël family. The transfer by the JHM concerned items that Vita Israël had loaned this museum before the war. CC had approached the JHM about them in 1998 and, after archival research by the JHM, fifteen objects were handed over to the Vita Israël family in 2001. The objects were bought back in 2002.
The handover by the GMDH concerned three artworks that this museum had purchased at the sale of the Vita Israël collection at auctioneers Frederik Muller & Co. in November 1940.
On 20 July 2015 the Committee issued a binding opinion in a dispute between the heirs of Vita Israël and Nijmegen City Council (RC 3.135). This opinion concerned the painting The Riddle of Nijmegen by Christiaen Coeuershof, which came from Vita Israël’s collection and which was sold by auction in November 1940 at Frederik Muller & Co. In this opinion the Committee came to the conclusion that the loss of possession of this painting could be designated as involuntary, caused by circumstances directly related to the Nazi regime. After weighing up the interests of the parties involved, the Committee then recommended restitution of the painting to the Applicants in that case.
3.6 An article by the journalist Lien Heyting in the NRC Handelsblad newspaper on 4 July 2008 addressed, among other things, the fate of the Vita Israël Collection. The following was stated about the proceeds of the auction.
'In november 1940, kort na zijn zelfmoord, werd de 'Verzameling van wijlen E. Vita Israël', 440 lotnummers, in Amsterdam geveild. De Nederlandse kunsthandel verkeerde eind jaren dertig in een malaise, maar meteen na de Duitse bezetting kwam er uit Duitsland veel vraag naar oude Hollandse meesters. Dus bloeide die handel op en stegen de prijzen. Aan het begin van de oorlog werden de bezittingen van de Joden nog niet in beslag genomen. De opbrengst van de veiling, die niet tegenviel, ging naar de familie en kwam uiteindelijk terecht bij de niet-Joodse schoondochter die na de oorlog met haar twee dochtertjes overleefde. "CC heeft me vroeger verteld dat het gezin daar in haar jeugd goed van heeft kunnen leven", zegt BB nu'.
['In November 1940, shortly after his suicide, the "Collection of the late E. Vita Israël", comprising 440 lots, was sold at auction in Amsterdam. At the end of the nineteen-thirties the Dutch art trade was in the doldrums, but immediately after the start of the German occupation there was substantial demand from Germany for Dutch Old Master paintings. So the trade flourished and prices rose. At the beginning of the war the possessions of the Jews had not yet been seized. The proceeds of the auction, which were not disappointing, went to the family and ultimately ended up with the non-Jewish daughter-in-law, who—together with her two small daughters—survived the war. "CC told me in the past that when she was young the family could live well on them," says BB now.' ]
In RC 3.135 the Committee conducted additional research into the fate of the proceeds of the sale and came to the conclusion it cannot be established with certainty what happened to them.
4. The Positions of the Parties
4.1 In 2018 the City Council told the Applicants’ lawyer it had emerged from the Museum’s provenance investigation that there were strong indications that both of the currently claimed objects came from Vita Israël’s collection. The City Council and the Applicants laid the subsequent request for restitution from the Applicants before the Committee for a binding opinion. The City Council refers in this context to its policy of submitting requests for the restitution of artworks with a dubious provenance to the Committee for a binding opinion.
In its letter of 6 March 2020 the City Council stated the following about the candelabrum, an illustration of which is in catalogue:
‘Since the item can be compared directly to the picture it could be ascertained from several details that it is the exact same item: a few worn down chips along the base, several old damages/scuff marks/signs of wear which correspond and the position of the two candle holders of which the left one is higher than the right one. The size (height) also corresponds […]. Also, an identical candlestick can be seen in a picture of the inside of Vita Israel’s home’.
In the same letter the City Council stated the following about the situla:
‘There is no picture of this item in the auction catalogue and it can not be recognized visually. However, in the annotated version of the auction catalogue the name “Fred” is written in the margin between the catalogue numbers 196 and 197 (annex 3). It’s therefore not quite clear to which catalogue number it pertains. Since item 197 is a bronze candlestick which is depicted in one of the black and white pictures in the auction catalogue, it concerns a type of candlestick which, after checking the museum’s collection, is apparently not a part of the Frederiks collection. On the other hand, the description and the size of item 196 on page 14 of the auction catalogue do correspond to a bronze holy water pail from the Frederiks collection, with inventory number KB 78 (KN&V), of which the height also corresponds to the description in the catalogue. Therefore, the annotation of the name “Fred” shall most likely pertain to item 196’.
When asked, the City Council let it be known that in this case it did not wish to invoke weighing up the interests as referred to in Article 3 of the Regulations.
4.2 The Applicants are requesting restitution of both objects and refer to binding opinion RC 3.135, which the Committee issued on 20 July 2015. According to the Applicants, in view of this earlier opinion, the only question that still needs to be answered is whether the claimed objects belonged to Vita Israël’s collection, which was sold in November 1940. They point out that according to the City Council this is plausible.
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 deliberation 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 Committee has satisfied itself that the dispute between the Applicants and the City Council has not previously been definitively dealt with. The Committee has not found a legal procedure or a judicial ruling relating to the objects. Nor have the Applicants previously renounced their rights to the objects. The Committee therefore considers the parties and their request to be admissible.
6.2 The Applicants have asserted that they are the rightful claimants to Vita Israël's estate. In this context they submitted a number of inheritance-law-related documents, including a certificate of inheritance drawn up on 14 October 2013 by A.C.W. van Limburg Stirum, notary in Hilversum, and a certificate of inheritance dated 1 October 2014 drawn up by G.W. Gramser, notary in Amsterdam. Looked at together, it follows from these certificates that the natural persons and legal entities referred to below are entitled to all goods, property and rights originating from or belonging to Emanuel Vita Israël and/or Eleonore Frederika Jacobs:
a) CC, living in XX, a 1200/3200ths share;
b) AA, living in XX, a 600/3200ths share;
c) BB, living in XX, a 600/3200ths share;
d) DD, living in XX, a 200/3200ths share;
e) II, living in XX, a 300/3200ths share;
f) JJ, living in XX, a 240/3200ths share;
g) the association EE, with its registered office in XX, a 12/3200ths share;
h) the foundation FF, with its registered office in XX, a 9/3200ths share;
i) the foundation GG, with its registered office in XX, a 9/3200ths share;
j) the foundation KK, with its registered office in XX, a 6/3200ths share;
k) the foundation LL, with its registered office in XX, a 6/3200ths share;
l) the association MM (currently the foundation X), with its registered office in XX, a 6/3200ths share;
m) the foundation NN, with its registered office in XX, a 6/3200ths share;
n) the association OO (currently the foundation X), with its registered office in XX, a 3/3200ths share;
o) the foundation PP, with its registered office in XX, a 3/3200ths share.
The natural persons and legal entities referred to above under e, f, j, k, l, m, n and o have each separately declared that they are aware they are entitled to part of all goods, property and rights originating from or belonging to Emanuel Vita Israël and/or Eleonore Frederika Jacobs. Each of them has also separately declared that they want to transfer their share of the entitlement to any possible rights in restitution cases concerning the Vita Israël family to the other heirs and that they want to relinquish any possible rights in this case.
The remaining natural persons and legal entities under a, b, c, d, g, h and i are the Applicants in this case.
6.3 The Committee needs first of all to address the question of whether the claimed objects belonged to the collection of Vita Israël in November 1940. With regard to the candelabrum, according to the City Council it can be concluded on the grounds of the listing in the sale catalogue and the photograph of the candelabrum in this catalogue that this candelabrum is the same as the currently claimed candelabrum and that it was acquired by Frederiks at the sale. The Committee has no indications that could lead to a different conclusion.
Unlike the candelabrum, the situla cannot be identified on the basis of an illustration. The City Council has pointed out, however, that the description and dimensions of lot number 196 in the sale catalogue are the same as those of the currently claimed situla. In addition, the handwritten note ‘Fred’, which the City Council contends is ‘most likely’ a reference to lot number 196, indicates that this object was also acquired by Frederiks at the sale. This is furthermore recorded on the Museum’s inventory card of the object. In view of this and in the absence of indications to the contrary, it is sufficiently plausible that the currently claimed situla belonged to Vita Israël’s collection which was sold at auction in November 1940.
6.4 The Committee then turns to the question of whether in this case the loss of possession of both objects can be designated as involuntary, caused by circumstances directly related to the Nazi regime. In binding opinion RC 3.135 the Committee answered this question in the affirmative with regard to the painting claimed in that case. In that case the Committee came to the conclusion that the loss of possession of the painting as a result of the sale at Frederik Muller & Co. in November 1940 by Vita Israël’s then heirs should be designated as involuntary, caused by circumstances directly related to the Nazi regime. See consideration 6.4 of binding opinion RC 3.135. The conclusion it contains about the nature of the loss of possession also applies to both the currently claimed objects. This loss of possession should therefore be designated as involuntary, caused by circumstances directly related to the Nazi regime.
6.5 It follows from the foregoing that the then heirs of Vita Israël lost possession of both the currently claimed objects in November 1940 involuntarily as a result of circumstances directly related to the Nazi regime. The current heirs, the Applicants, are asking the current owner, Rotterdam City Council, for restitution. The City Council let it be known that it did not wish to invoke weighing up the interests as referred to in Article 3 of the Regulations. The Committee therefore does not weigh up the interests involved. On the basis of the yardsticks of reasonableness and fairness, the Committee takes the view that the City Council is bound to restitute both the currently claimed objects to the Applicants.
The Committee advises Rotterdam City Council to restitute the candelabrum (KA 118) and the situla (KB 78) to the Applicants.
This binding opinion was issued on 13 July 2020 by A. Hammerstein (Chair), S.G. Cohen-Willner, 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)