Binding opinion (after settlement) regarding Gosschalk / Wagner-de Wit Foundation

Report number: RC 3.182

Advice type: binding opinion

Advice date: 31 May 2023

Period of loss of ownership: unknown

Original owner: private individual

Location of loss of ownership: in the Netherlands

Landscape with a Waterfall by Jacques d’Arthois

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The undersigned:

1) AA, born on xx, residing at XX, acting in this matter on their own behalf and as representative of:

a. BB, born on xx, residing at XX;
b. CC, born on xx, residing at XX;
c. DD, born on xx, residing at XX;

being the legal successors pursuant to inheritance law of Mr Joseph Henri Gosschalk, born on 12 May 1875 and died on 6 October 1952, hereinafter referred to as the Applicants;

2) Stichting Wagner-de Wit (Wagner-de Wit Foundation), established at 6211 LD Maastricht, Vrijthof 18, hereinafter referred to as the Foundation, represented in this matter by the Stichting Museum aan het Vrijthof (Museum aan het Vrijthof Foundation), in the person of its director, Mr EE;

3) Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, hereinafter referred to as the Restitutions Committee.

Whereas:

In October 2018 the Applicants and the Foundation asked the Restitutions Committee to issue a binding ruling regarding the issue (formally the dispute) concerning the painting Landscape with a Waterfall (also known as Landscape with Rocks, Mountain Stream and Abbey), oil on panel, 53 x 35.5 cm, (hereinafter referred to as the Painting) by the artist Jacques d’Arthois, which is in the collection of Museum aan het Vrijthof in Maastricht, but is the property of the Foundation.
It can be assumed that the Painting was purchased by Mr F.H.A.A. Wagner on 1 May 1951 at a sale of recovered goods put up for auction by the Dutch State in the ‘De Zon’ auction house (the firm of L. Gijselman & Zoon) in Amsterdam. Mr Wagner and his wife B. de Wit specified in their wills that after their deaths their art collection, which was transferred to the foundation they established in Maastricht on 31 August 1954 to that end, the Wagner-de Wit Foundation, should be destined for one or more museums. The Foundation became operational after the death of Mr Wagner on 1 March 1958. His wife predeceased him in 1957.
The Applicants and the Foundation stated they were in agreement with the Restitutions Committee’s regulations that were applicable in December 2019.
On 2 April 2020 the Restitutions Committee asked the Restitution Expertise Centre (hereinafter referred to as the ECR) to launch an investigation into the facts. The results of that investigation were recorded in a draft report that was sent to the Applicants and the Foundation on 21 December 2022. After they had had the opportunity to respond to this draft, it was presented to the Restitutions Committee, and it was subsequently adopted on 29 March 2023.

Indications were found during the ECR’s research that the Painting had been the property of Gosschalk. The investigation furthermore revealed that the P. de Boer gallery in Amsterdam probably bought the Painting in September 1940 from the art dealer M.J.A.M. Schretlen of Amsterdam and subsequently sold it in September 1941 to Hans Posse, head of the Sonderauftrag Linz (Special Mission Linz). Schretlen was an acquaintance of Gosschalk and there are indications that transactions involving artworks took place between them both before and during the occupation.
The Painting was returned to the Netherlands in the course of 1946.
The investigation report states that: ‘Voor zover kon worden nagegaan, heeft Gosschalk de SNK na de oorlog niet aangeschreven over de D’Arthois. De informatie- waarde van dit gegeven ten aanzien van de herkomstgeschiedenis van het werk is beperkt. Dit onder meer, omdat uit naoorlogse correspondentie van Gosschalk bekend is dat hij ernstig had geleden onder de gevolgen van de Jodenvervolging. Zijn geheugen was door de gebeurtenissen verzwakt en zijn administratie was, evenals veel van zijn kunstwerken, uit zijn bezit geraakt.’
[‘In so far as it has been possible to check, Gosschalk did not write to the SNK after the war about the D’Arthois. The value of this information with regard to the provenance of the work is limited. The reasons include the fact that Gosschalk’s post-war correspondence has revealed that he suffered severely from the consequences of persecution of the Jews. Events caused his memory to deteriorate and he lost possession of his records and many of his artworks.’]
On the grounds of the investigation report, the Restitutions Committee considers it highly likely that the Painting had belonged to Gosschalk. It has not become clear whether he ceased to have possession of the painting before or after the German invasion of the Netherlands. If Gosschalk, who belonged to the persecuted Jewish population group, sold the work to Schretlen between 10 May 1940 and September 1940, it would be assumed that the transaction was a forced sale. If the sale was earlier than this, the involuntariness would have to be sufficiently plausible.
Principle 4 of the Washington Conference Principles of Nazi-Confiscated Art (1998) states: ‘In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.’
In the spirit of the aforementioned Washington Principle 4, the Foundation actively volunteered that the fact that the work had belonged to Gosschalk was determining for it, and that it did not consider it relevant whether Gosschalk lost possession of the Painting before or after 10 May 1940. This stance created scope for the following settlement agreement between the Applicants and the Foundation.

Agreement

The Foundation declares that it is willing to restitute the Painting to the Applicants on the grounds of the fact that it is considered highly likely that the Painting had belonged to Gosschalk and that it is willing to assume that Gosschalk had to sell it in difficult circumstances around the time of the German invasion of the Netherlands.

The Applicants are pleased about the Foundation’s sympathetic stance and accept the Painting subject to the following conditions:

– The Painting will be accepted in its current condition. After the transfer today the risk will pass to the Applicants.

– The Applicants indemnify the Foundation against any damage to the Painting and/or the frame and against all claims that third parties may submit now or at any other time with regard to the ownership of the Painting, as well as other commercial or personal rights of whatsoever nature.

The Hague, 31 May 2023

Applicants Museum aan het Vrijthof Foundation
AA EE, director

The authority of the signatories is proved by the four attached powers of attorney.

Binding opinion

Article 10 of the regulations that apply in this case stipulates that if the parties reach a settlement, the Restitutions Committee will record its contents in a binding opinion.

To that end the Restitutions Committee rules that the Foundation should restitute the Painting to the Applicants on the grounds of the foregoing.

This binding opinion was issued on 31 May 2023 by D. Oostinga (Vice-Chair), J.F. Cohen, S.G. Cohen-Willner, J.H. van Kreveld and C.C. Wesselink, and signed by the Vice-Chair and the Deputy Secretary.

D. Oostinga, Vice-Chair A. Flesschedrager, Deputy Secretary