The museum’s position
The Museum argues that the application for restitution submitted by E. and C. should be rejected, or, at the very least, that it should not be granted without E. and C. compensating the Museum in a manner to be determined by the Committee and that the Museum be indemnified against third-party claims to the painting (explanation 28.9.2006, no.33 and rejoinder 16.12.2006).
The Museum refers to the Committee’s judgement concerning the involuntary loss of possession. Moreover, the Museum is not arguing that the application be dismissed as a result of the compensation paid by the Wiedergutmachungskammer des Landgerichts Frankfurt am Main in 1956, but refers in this respect to the judgement of the Committee (explanation 28.9.2006, nos.7 and 26-27). The Museum does not rely on the prescription of E. and C.’s claims because they consider this to be inconsistent with (its consent to) presenting the dispute to the Committee (explanation 28.9.2006, no. 28).
According to the Museum, there is uncertainty as to whether the painting was lost as a result of confiscation, as E. and C. contend, although they admit that it is a possibility. The Museum acknowledges that the painting was owned by Ernst and Gertrud Flersheim until approximately 1938, and, according to the Museum, the facts and circumstances put forward by E. and C. do not rule out the possibility that the work was confiscated by the Gestapo at that time.
The Museum argues that it is now difficult to determine what research was carried out at the time into the provenance of A Prayer before Supper. It is plausible, according to the Museum, that when the painting was acquired in 1981, any such research was superficial (explanation 28.9.2006, no. 9), but that, when purchasing modern art, it was unusual for research into the war history of a piece to be conducted either in the Netherlands or abroad. In 1981, the Museum did not know or could not in all reasonableness have known that a work of art had belonged to a Jewish family prior to the war. The substantial amount of documentation that appeared after 1981 and insights that originated later should not be projected back to that year. This should also apply to the names on the back of the painting, which, according to E. and C., constituted grounds for further investigation by the Museum. The Museum is of the opinion that, in 1981, the knowledge that an artwork was once in the possession of someone with a dubious war history did not constitute the need for further investigation.
Furthermore, the Museum bought the painting from a dealer with a significant reputation, Bouwman, subject to a normal market transaction for which a considerable price was paid (NLG 150,000). Moreover, the purchase of the painting was supported financially by the well-respected Rembrandt Association (NLG 75,000). This offer of support can also be interpreted to mean that others in the museum world saw no reason to question the acquisition.
In response to a question from the Museum, Prof. R.E.O. Ekkart from the Netherlands Institute for Art History in The Hague declared in writing on 27 September 2006 that, in 1981, museums and art dealers were not in the habit of researching whether or not works of art acquired or documented had a war history. Ekkart also argued that the manner in which museums and art dealers traded in 1981 cannot be judged on the basis of an awareness that originated much later.
According to the Museum, the abovementioned details can lead to no other conclusion than that when the painting was purchased in 1981, the Museum acted in good faith. The Museum is also of the opinion that this should play a role in the Committee’s final judgement in the dispute with E. and C., albeit as a secondary point now that Bouwman’s power of disposition is no longer open to discussion.
The Museum also deems that the above factors are reason enough for them to have a different, stronger position in this dispute than the State would in disputes regarding the national art collection.
After E. and C. submitted their claim to the Museum in 1999 and the parties were unable to reach agreement, the Museum requested advice from the Committee for the Code of Ethics for the Association of Dutch Museums (25 May 2000), which determined that the criteria of decent trading by museums governing the acquisition of A Prayer before Supper in 1981 did not require that additional research be carried out.
The Museum argues that their interest in keeping A Prayer before Supper in their collection is significant. The loss of the painting from the collection would represent a substantial loss for the Museum, which they have explained as follows. Jan Toorop lived and worked in Zeeland during different periods and A Prayer before Supper is important for the province because it links an international artistic movement with a local theme. The painting depicts a family portrait of Toorop’s friends from Domburg, the Louwerse family, and represents the painter’s glorification of piety of the citizens of Zeeland.
After consideration, the settlement offer proposed by E. and C. during the hearing was rejected. The Museum explained that keeping A Prayer before Supper in their collection and a decision by the Committee is more important to them than any financial remuneration.