In March, the Spoliation Advisory Panel published its latest Report, concerning three claims made in regards to three paintings attributed to Flemish artist Peter Paul Rubens. The paintings, owned by the Samuel Courtauld Trust and in the possession of the Courtauld Institute of Art, are:

• St Gregory the Great with Ss Maurus and Papianus and St. Domitilla with Ss Nereus and Achilleus (1606-1607),
• The Conversion of St. Paul (circa 1610-1612),
• The Bounty of James 1 Triumphing Over Avarice, for the ceiling in the Banqueting House, Whitehall (circa 1632).

Bounty of James I Triumphing over Avarice

The paintings were part of a “respected and important” collection amassed by Franz Wilhelm Koenigs. In 1935, Koenigs transferred 47 paintings, including the three at issue in this Report, to a Dutch bank as security for a loan. In 1940, the Bank went into voluntary liquidation and the paintings were sold to Count Antoine Seilern, who left the paintings to the Courtauld. This is the second time that claims relating to these paintings have been considered by the Spoliation Advisory Panel, with claims first being raised in 2007. The Dutch Government’s Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War (DRC) has also rejected claims by Ms Koenigs (granddaughter or Franz Wilhelm) on three occasions.

In this instance, Ms Koenigs lodged an allegedly different claim on behalf of herself and seven of the thirteen heirs of Koenigs. Separately, Mr Gal Flörsheim claimed restitution of the three paintings as sole heir of Salomon Jakob Flörsheim, one of the main shareholders in the Bank. Mr Flörsheim also claimed as a recently appointed liquidator of the Bank, along with co-liquidator Mr Dolev.

Several conclusions were made in the 2007 Report:

• As per a Loan Agreement of 1935, Koenigs’ drawings and paintings (including the three in question) served as security for loans made to him by the Bank, and he had not discharged that loan by the early 1940s.
• The Courtauld’s title is legally impregnable, as any legal claim is time barred under English law.
• The claimant’s grandfather, Koenigs, was not deprived of the paintings by theft or forced sale, but by the Bank realising its security; any forced sale resulted from the Bank’s need to sell owing to the impending German invasion of the Netherlands. The Bank had the right to sell the paintings because of the 1935 Loan Agreement, which formalised an earlier agreement from 1931. As such, Koenigs’ loss was commercial, not because of Nazi spoliation.
• Any independent moral claim was rejected because Koenigs never intended to leave his collection to his heirs.
• No criticism was attached to the Courtauld regarding their acceptance of Count Seilern’s bequest.

Whilst the Panel acknowledged that the claims in this Report by the heirs of the Bank’s shareholders and liquidators differed from the 2007 claim, previous conclusions were freshly considered, with the Report stating that “some doubts previously expressed by the Panel can now, with greater confidence, be put to rest”.

The Panel first considered the claimants’ standing to claim for the paintings to be restituted from the Courtauld. As the Bank was Dutch, laws relating to their shareholders, entitlement to assets and rules of liquidation fall under Dutch law. These issues were considered by the DRC in its 2022 Report, with the Panel concluding that Koenigs’ collection was “in the full and free ownership” of the Bank. As such, the Spoliation Advisory Panel’s Report stated that if the DRC has rejected the claim of a shareholder under Dutch law, there was no reason for any claim to be entertained under English law. Overall, the Panel felt that the claimants did not have any standing in Dutch or English law to make their present claims. They did, however, consider their moral claims in light of the 2007 Report and subsequent evidence.

Turning to the subject of the Bank’s voluntary liquidation in 1940 and the forced sale of its assets, the claimant – Flörsheim – accepted that Koenigs had transferred ownership of the painting to the Bank. It is less clear, however, whether Ms Koenigs accepts this given she has previously disputed the transfer of title. It was noted by the Panel that the Loan Agreement was made before any threat of German invasion, or any threat of Nazi persecution in the Netherlands. In addition, the Loan Agreement’s reference encompassed voluntary liquidation. The Panel then questioned whether the sale of the works by the Bank was forced; each of the three claims rested, in part, on circumstances which demonstrate the Bank was under pressure to sell the three paintings to Count Seilern due to justified fear of Nazi persecution. Whilst the Panel considered it clear that the Bank sold the paintings because it chose to liquidate its assets in light of the impending invasion, it concluded that it “does not follow” that the sale of the three paintings was a forced sale.

New material was discussed in the Report, such as an “Amicus Brief” considering the claims for restitution which detailed the claims for restitution and the circumstances and consequences of the loan, as well as a letter which provided further information on the well-founded fears of Nazi persecution felt by Dutch Jews. However, the Panel did not feel this changed their view of the paintings’ sale not being forced. The 2007 Report suggested that the paintings were brought to England in an unorthodox manner. Correspondence between Count Seilern and Jan van Gelder, director of the Mauritshuis Museum, shows that the paintings were not, as previously thought, smuggled out in an army jeep but instead exported with van Gelder’s help.

The Panel also discussed whether the paintings were sold at an under-value. A report produced by Mr Flörsheim showed a difference of fifteen per cent between the asking price and Count Seilern’s offer, which was considered by the Panel to be “expected”. The Panel asserted that there was no basis to conclude that Count Seilern took undue advantage of the Bank’s circumstances and referenced the 2007 Report in stating that there was no reason for the Courtauld to have been “on guard” regarding the bequest.

The moral strength of the claims was dismissed by the Panel as “weak”: the Report stated that the heirs of the shareholders and liquidators of the Bank have no moral claim. Regarding the claim from Koenigs’ heirs, the Panel quoted the 2007 Report in saying that the grandchildren of Koenigs’, who had pledged the paintings as security and intended them to remain at the Museum “could ever have a superior moral claim to the paintings than that of the Courtauld”. Indeed, the Panel concluded that the three paintings being held in a museum for the public fulfils the previous owner’s wishes.

Image Credits:

Peter Paul Rubens, Bounty of James I Triumphing over Avarice, circa 1632, public domain via Wikimedia Commons.