The burden of proof lies with the plaintiff!

The issue dealt with valuable drawings that once belonged to their ancestor. The descendants claimed that a number of drawings had been on loan since 1935 and still belonged to the estate of Koenings. Boijmans disputed the validness of the claim. The Court of Appeal has now confirmed a judgment of the lower District Court of Rotterdam dated August 23, 2017. Conclusion: the descendants of Koenigs are not entitled to the drawings and they are not on loan in Boijmans.

Koenigs (1881-1941), a German banker, is best known as an art collector. German born, he received the Dutch nationality in 1939. Koenigs managed to bring together a large collection of valuable paintings and drawings. In 1935 he loaned his collection for a large part to Boijmans. Further, he used his collection as security for his financial obligations towards the Amsterdam Bank Lisser & Rosenkranz. Lisser & Rosenkranz were entitled to use the art collection at Boijmans for recovery, if Koenigs had not repaid his debt by 31 May 1940.

Apparently Koenigs was not doing well. As from 1939 he tried to sell his collection to Boijmans. It did not work out. Therefore, in April 1940, he transferred the collateralized art to Lisser & Rosenkranz as payment for his debt. Lisser & Rosenkranz shortly thereafter sold the collection to D.G. van Beuningen. Van Beuningen, in his turn, sold part of the collection to Adolf Hitler's art buyer, while another part was left at Boijmans.

The art objects from the Koenigs collection at Boijmans included a number of (valuable) drawings. A few descendants of Koenigs believe that a number of the drawings were excluded from the collateral provided to Lisser & Rosenkranz and were therefore never transferred to Lisser & Rosenkranz in April 1940. According to them, these drawings still belong to the estate of the Koenigs. However, no documents showing the correctness of their statement beyond doubt were submitted in court. This lack of documentary evidence meant that the outcome was fatal.

The Court of Appeal (and the District Court) deducted from the correspondence between Koenigs and Boijmans in 1940 that Koenigs intended to transfer his entire collection at Boijmans to Lisser & Rosenkranz to pay off his debts. He had made no exception for the drawings claimed by the descendants. According to the Court of Appeal and the District Court, neither Koenigs nor, later, his wife, nor any of Koenigs heirs (until recently) had taken the position that the drawings of the Koenigs family were still on loan to Boijmans on their behalf and still belonged to the Koenigs estate.

The Court of Appeal and District Court therefor concluded that the drawings had already been transferred to Lisser & Rosenkranz in April 1940 and that the loan had terminated at the same time.

Commentary by Oostwaard

An art object can be lost or forgotten. But the Court of Appeal did not believe that this was the fact in this case. If the intention had been not to transfer specific drawings to Lisser & Rosenkranz in 1940, Koenigs would have made that clear when he transferred his collection, the Court of Appeal argued. The basic tone of the Court of Appeal appears to be one that is voicing criticism. The idea seems to be that people must have properly arranged and documented their affairs before claiming ownership after so many decades. Apparently, the lack of action by the family in the past decades is seen as a confirmation that Koenigs took the position that the drawings had already been transferred in 1940. The Court of Appeal did not address the aspect of limitation periods or forfeiture of rights. Obviously, it took the position there was no need to do so. Even when these types of disputes are often, due to prescription, not legal in nature, but rather a matter of morality and decency.

There exists a specific dispute resolution mechanism through the so-called Restitution Committee in the Hague for art lost by circumstances related to World War II. As a matter of fact, the transfer of the Koenigs collection itself in 1940 has also already been judged by the Restitution Committee several times. The Restitution Committee took the view that the Lisser & Rosenkranz transaction had not been forced by war circumstances. Therefore, the State of the Netherlands was not under an obligation to restitute works of arts to the family Koenigs.

But the present proceedings relating to the drawings were not about war circumstances, quite the contrary. The ownership was claimed because the drawings had allegedly never been transferred to Lisser & Rosenkranz. But, apparently, the civil courts did not buy this argument.

Only 6 of the 14 heirs of Koenigs acted in the proceedings. One can ask whether the term heir is legally correct, but this is beyond the scope of this contribution. The 6 heirs will have acted in law as so-called "interested parties" in the estate of Koenigs. The proceedings had (also) been instituted for the benefit of that estate and therefore affected the other heirs who did not take part in the proceedings. It is perfectly possible that those heirs did not agree to the institution of the proceedings, perhaps because they did not believe in the claim. Such differences of opinion between heirs may lead to internal disputes. In an attempt to avoid such disputes, it may be advisable for heirs to make arrangements about how and by whom proceedings on behalf of an estate may be instituted.