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Fair play, not the letter of the law for Tate restitution case

The panel finds Tate has legal title to a war-loot picture but agrees that the claimants should be compensated on ethical grounds

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The Spoliation Advisory Panel has recommended that the government compensate a family who claimed the landscape, “A view of Hampton Court Palace” by Jan Griffier the Elder, now in the Tate Gallery, to have been stolen by the Nazis (The Art Newspaper, No.95, September 1999, p.12).

The painting belonged to a Jewish banker living in Düsseldorf in the 1930s. When the banker was shot by the Nazis, his children emigrated to England, but his widow fled to Brussels in 1940 with much of his art collection and went into hiding. In order to survive, she sold pictures, including the Griffier, which went for what she later described as the price of “an apple and an egg”. The widow was sent to a concentration camp near Mechelen in 1944, but, after Liberation, she was able to join her family in England where she died in 1968.

The Griffier was bought, as by Lucas van Uden, in 1955 at auction from the Kunsthaus Lempertz in Cologne by Roland, Browse and Delbanco, the London dealers, from whom it was bought in 1961 by the Friends of the Tate who donated it to the museum.

Neither Roland, Browse and Delbanco nor the Friends of the Tate, both of whom made enquiries, discovered anything about the painting’s provenance except that its previous owner had been “a serious private collector in South Germany.”

The painting was recognised as the missing picture in 1990 from 1930s photographic negative and, with the help of the Holocaust Education Trust, the widow’s two sons and a daughter, who wish to remain anonymous, made their claim to the Tate in July 1999 and to the Spoliation Advisory Panel in June last year.

The Tate took the claim very seriously from the start and the director, Nicholas Serota, not only expressed sympathy for the family, but expressed his intention to take the matter up with the Department of Culture, Media and Sport.

In January, Sir David Hirst, MP, chairman of the Spoliation Advisory Panel, reported the panel’s decision in the matter, which reflected a very British sense of honour and fair play.

Having surveyed the picture’s legal history and its current status in law, it was noted that under Belgian law (relevant to the picture’s sale during the war), German law (relevant to the picture’s auction by Kunsthaus Lempertz) and English law (pertaining to the purchase of the work by the Friends of the Tate) the Tate has legal title to the painting.

Furthermore, the panel noted that, as well as in Britain, any claim brought in either Belgium or Germany the claim would be statute-barred, owing to the lapse of time.

Consequently, the claimants had no legal claim to the picture.

However, the panel recognised that, by a declaration signed by the Allied in 1943, provision was made for the the government’s restitution of works to dispossessed individuals when the moral strength of the case warranted such compensation.

The panel also pointed to the memorandum submitted by the Charity Commission to the Select Committee on Culture, Media and Sport on the return of cultural property, that indicated the need to weigh moral considerations along with the responsibility to keep property in the public domain for the public benefit.

The Spoliation Panel therefore found that the moral strength of the case put by the widow’s descendants to be greater than the legal considerations. Because the family did not wish to have the painting, but wanted compensation, and because the Tate want to keep the picture, the panel recommended that the government recompense the widow’s heirs.

The panel consulted four experts for valuations. Sotheby’s valued the work at £250,000, Christie’s at £120,000-180,000, Johnny van Haeften at £150,000 and Hazlitt, Gooden and Fox at £100,000.

The panel took an Anglican via media and suggested an ex gratia payment of £125,000 and went on to suggest that “that the Tate should display alongside the picture an account of its history and provenance during and since the Nazi era, with special reference to the interest therein of the claimant and his family.”

Originally appeared in The Art Newspaper as 'Fair play, not the letter of the law'

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