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Rembrandt was 32 and Saskia 26 when they purchased a large house and premises in the Breestreet in Amsterdam. The contract is dated 5 January 1639. The house formed a part of their patrimonial property. Focusing on the financial and legal details of the purchase agreement, the details can be found on my blog (podcast addendum RM24008). Seventeen years later, in 1656, Rembrandt transferred the house to his son Titus. Until 2019, it was generally held in the literature that Rembrandt transferred ownership of the house to Titus, to the detriment of the interests of Rembrandt’s creditors. The debate has also raised the question whether Rembrandt had the malicious intention to disadvantage his creditors or whether he was acting simply to safeguard the long-term interests of his family (i.e. Hendrickje, their unlawful child Cornelia, and his son Titus). This legal event has been extensively studied in the literature. Theories and questions have been put forward on whether creditors had the right to nullify such a transaction that took place so close to the application for insolvency (cessio bonorum). These 2 questions are central in my podcast of today.
1 Introduction
The alleged transfer (or conveyance) of the house by Rembrandt to Titus took place in May 1656. Rembrandt’s financial position should be seen in the light of the economy of these days.
The economy in the early 1650s was experiencing a downturn. Four years after the Peace of Münster ending the 80-years war with Spain, the Republic of the Seven United Netherlands went to war with former ally England. This First Anglo-Dutch War was fought entirely at sea. The core point of dispute is the hegemony in the North Sea and later in Indian waters. The English claimed the entire North Sea as their waterway. The Dutch, on the other hand, inspired by the work Mare Liberum (‘The Free Sea’, 1609) by legal scholar Huge de Groot (in large parts of the world know as Hugo Grotius), emphasized that international waters should be freely accessible to trading ships and fishing vessels.
[Depiction of the Battle of Dover, 1652, in England known ‘The Battle of Goodwin Sands’
(Public Domain – wiki)]
When the First Anglo-Dutch War broke out in 1652, the market for expensive paintings went into sharp decline, from which it never completely recovered. Well-known professional painters were at the top of their hights, and they were obliged to compete with each other in a market with falling prices and, for history paintings in particular, declining interest. From the outbreak of the war, virtually all production of expensive paintings was overproduction, concludes Schwartz is 2015.
The public health situation was abominable with the plague rampant among the Amsterdam population. In this period in 1652 a plague hit hard again. From 1450, the disease had intermittently surfaced on thirty-seven occasions in Amsterdam, and every year between 1652 and 1657 and 1663 and 1666. The plague epidemics had a major impact on Rembrandt’s life. It is believed that his mistress Hendrickje Stoffels died from the disease in 1663, and five years later a plague epidemic was most probably the cause of death of his son Titus.
Another circumstance to be mentioned is that during some five years after Saskia’s death in 1642, Rembrandt had not been very productive. Moreover, his style and use of colour slowly grown out of fashion.
2 ‘Transfer’ of the house to Titus
What happened with the alleged ‘transfer’ of the house by Rembrandt to Titus?
A preliminary remark concerns the fact that the house is not fully owned by Rembrandt himself. A distinction must be made between matrimonial property and property belonging to the inheritance estate. After Saskia’s death in 1642, Rembrandt was entitled to half the matrimonial (or marital) property. The entire marital property was the result of the system of general community of property, legally established as a result of the marriage between Saskia and Rembrandt in 1634. This included the property accumulated up to the date of her death in 1642. As a result, furniture bought, other items purchased or payments received by Rembrandt for work sold, fees for training pupils etc, all belongs to joint marital property. This result would also include assets or money received by Saskia until her death. However, there is no documentation pointing in such a direction.
Titus’ position is related to the property in Saskia’s legacy and in contemporary legal terminology, he was the bare owner (‘bloot eigenaar’). Rembrandt remained the (full) owner of the other half of the marital property and became the holder (‘houder’) of the legacy property, of which Titus was the bare owner. If it is assumed that Rembrandt transferred the full title of the entire house to Titus, it is obvious that Titus will receive more than he was entitled to under the rules of inheritance law. He is entitled to half of the house, or rather – to half of the bound community of which the (ownership rights to the) house is an important integral part. A transfer of the full ownership of the house would have been a non-obligatory (‘onverplicht’) act for one half of it, and would result in an undue payment (‘onverschuldigde betaling’). Long story, but necessary to explain that the submission of a full transfer of the house to Titus in itself already raises an inexplicable legal obstacle.
As an aside, no legal documents have been found that mention Titus as a debtor of Rembrandt, e.g. Titus for a debt of ‘half’ of the house or, on his behalf, the Orphan Chamber as a debtor to Rembrandt.
3 In Dutch ‘(heeft) bewesen’
The legal transaction document or Rembrandt’s ‘registration in the Contributionregister’ (‘inbreng in het Inbrengregister’) does not express that Rembrandt ‘transfers’ or ‘assigns’ the house. It states that Rembrandt on said date ‘… heeft … bewesen’ a house and premises free from any taxes to his son Titus for his mother’s inheritance. I will discuss the verb ‘bewijzen’, expressing Rembrandt’s act as ‘… heeft … bewesen’ below.
t should be noted that in current Dutch legal language in this context, the term ‘bewijzen’ (the verb of which ‘heeft … bewesen’ is the past particle) is only known in a totally different legal context. ‘Bewesen’ and ‘bewijzen’ are conjugations of the same word, dependent on (in this case) referring to the past or to the future. It is noted that in present-day Dutch ‘bewijzen’ unmistakably means: to prove, to substantiate, to give evidence.
The statement, drawn up by n the presence of Messr. Hendrick Spiegel and Jan van Waveren, commissioners of the Orphan Chamber (‘Weesmeesteren’), contained the additional proviso that if he (Rembrandt) should marry a second time (‘… dat bij provisie ter tijden ende wijlen hij hem wederom ten tweeden houwelijck soude mogen comen te begeven’), he shall ‘bewijzen’ Titus’ entire legacy left by his mother to her. Meanwhile, Rembrandt shall support him, until he comes of age, with the benefits accruing from this inheritance. Furthermore, in order to free the house from indebtedness and obligations encumbering it, Rembrandt pledged all his possessions, movable and immovable, present and future (‘… ende tot bevrijdinge van de schulden ende lasten, op het voors. huys geaffecteert, verbonden alle syne goederen, roerende ende onroerende, praesente ende toecomende’), in such a way that Rembrandt shall continue to administer all the other property, debts and claims and this with the [expected] consent of his [Titus’] maternal relatives (‘des sal bij provisie voorts blijven sitten in alle de andere goederen, schulden ende inschulden; ende dit op het behagen van de moeders vrunden’).
4 Meaning of ‘bewezen’
In 2019, Dutch historian Bosman struggles with the meaning of the term ‘bewijzen’. He indicates that Rembrandt grants the house to Titus in connection with the still outstanding legacy of his mother. The Dutch term Bosman uses for this act is ‘toekennen’. In general, this term means to ascribe or to assign, however I have not found the term used in 17th legal literature in relation to transferring a right of ownership. Moreover, the description of ‘house and premises’ in itself is too vague and too indefinite to serve as an object of a transfer of ownership rights. If Bosman expresses a possible transferring of ownership, the complication that Rembrandt is a co-owner is overlooked.
As stated above, in current Dutch (legal) language, the verb ‘bewijzen’ (with the past particle ‘heeft bewesen’) is uncommon in this context. In the dictionary that is available for words and terms used in the 17th century, no less than six meanings are given for ‘bewesen’, two of which seem relevant in the present context. See the Instituut voor de Nederlandse Taal (Institute for Dutch language), see http://gtb.ivdnt.org/iWDB/search?actie=article&wdb=WNT&id=M008373.
The first meaning mentions sentences, referring to books with ordinances and literature from this past period, which I have not translated into English. The first lemma provides explanatory sentences like:
‘The assets of the Orphan, which will be ‘bewesen’ at the Orphan Chamber.’
‘That Father or Mother will be obliged to come to the Orphan Chamber to ‘bewijsen’ the goods of the Orphans and to have these listed in the Orphans book.’
‘The ‘bewesen’ ready money has to be brought to the Orphan Chamber, unless the parents wish to keep this.’
‘The widow stated to have no means to be able to ‘bewijzen’ to his children something for their mother’s inheritance.’
The second meaning of ‘bewesen’ is: ‘to demonstrate that something is as claimed; also as a term in law and in science, a) with a person as subject; the object is expressed in the subordinate clause; b) with a matter, either in a person’s imagination or something from which something else can be deduced with certainty’.
It seems that Van Zwieten, explaining the rules for the Orphan Chamber in present- day New York (New Amsterdam in 1656) follows this second reading, in the sense of providing evidence. Van Zwieten (1996), 333, explains that the Orphan Chamber in New Amsterdam in 1656 (with a large Holland footprint at that time) was very largely copied from its example in the motherland.
She states that ‘(I)n both Amsterdams, the Orphan Chamber ordinance required a surviving parent to make, or to exhibit, the orphan’s property, which was called ‘aan de wees zijn goed bewijzen’, shortened to ‘bewijs doen’, or ‘making proof’’. She further elaborates that this led to all orphan goods being kept at the Chamber to be sold publicly. The proceeds of the public sale were entrusted to the guardians to pay off creditors, and any surplus due to the orphan was either trusted to the guardian or deposited with the Orphan Chamber. Although in present-day Dutch the legal terminology ‘bewijzen’ is used as giving proof or evidence, the term in the 17th century seems to have had a more substantial meaning (than just demonstrating something).
[Johannes Lingelbach, Dam Square of Amsterdam, 1656. A busy commercial area with traders and tourists from all over the world. On the left hand side the new Amsterdam city hall under construction (https://rachelsruminations.com/amsterdam-historical-museum/)]
5 Five meanings for the term
I am following the first meaning: at first glance, the verb ‘bewijzen’ seems to express, in the context of the situation described, a certain legal act. The act could have been initiated either by Rembrandt himself or by invitation from the Orphan Chamber. Takers for the initiative are not by Titus, who was still a minor of some 16 years old, nor third parties (Frisian relatives, creditors), as there is no evidence to support such an assumption. Taking this track, I can differentiate five meanings for the verb ‘bewijzen’.
These are: (i) an administrative entry; (ii) an ascription; (iii) providing a form of safeguard, a guarantee; (iv) the expression of a conditional allocation; and (v) the rather generally held view in literature until 2019: a transfer of ownership. I will clarify the first four.
5.1 Administrative entry
The verb ‘bewijzen’ would indicate something of a clerical act, necessary for instance to certify or to demonstrate that Rembrandt was the owner of the house and to have that fact registered.
5.2 Ascription
It could also mean an ascription (‘tenaamstelling’), a registration to have the house merely registered in Titus’ name. This is the view taken by prof. em. Cappon, who emphasizes the function of the Orphan Chamber in supervising the assets of orphans. This could only be done if the Chamber was aware of the amount and components of these assets. The power of such an ascription would then lie in the fact that in the event of a dispute, the orphan would have clear evidence (the register had authentic evidential value). Perhaps, it had been pressure from the Frisian family that had led to lifting the exemption with regard to the registration of goods provided by Saskia in her will of 1642.
5.3 A form of a safeguard
University of Tilburg researcher Marco In ‘t Veld indicates, correctly, that two creditors (Witsen and Van Hertsbeeck) had stipulated a security right as collateral for their loans to Rembrandt. These security rights existed on all Rembrandt’s goods, without transferring ownership of these goods (‘alle goederen, roerende en geloospant’) or, as with the loan to Van Hertsbeeck, the loan would be repaid within a year by Rembrandt who pledged as security all his possessions (‘… hiervooren verbindende alle zijne goederen ende geloospant etc.’). Because, according to Amsterdam law at that time, a right of mortgage has ‘droit de suite’ (‘zaaksgevolg’, ie ‘follows the asset’), In ‘t Veld submits that it is more obvious to qualify ‘beweysinge’ as Rembrandt’s promise (belofte) to the masters of the Orphan Chamber to also be responsible for his (part of the) house for a debt. His part is 20,325 guilders of the value of over 40,000 guilders on the basis of the inventory made in 1647 as a clarification of the values of all possessions. And this part of over 20,000 guilders would the be Rembrandt’s debt towards Titus on the basis of Saskia’s will. Historian Bosman seems to have developed the same interpretation by stating: ‘Rembrandt provides his insolvent estate as security for a house encumbered with debt that he has granted to his son in connection with the inheritance that he still owes him’.
It should be mentioned that as a matter of law (‘van rechtswege’) Titus for his claim towards his father has a security right. This security right for the benefit of Titus had been established just by operation of law in 1642, the date of the dead of Saskia.
Rembrandt did not have to promise anything since the existing obligation he had towards Titus had already been secured by law – so there is nothing to promise. The term ‘bewijzen’ seems, instead, to be more in line with the concept that Rembrandt was (already) bound by law. As a result, the term term ‘bewijzen’ seems, instead, to be more in line with the concept that Rembrandt was (already) bound by law and that – at his own initiative or at the request of the Orphan Chamber – with the ‘bewijs’ was determining the content (‘bepaalbaar maken’) of his obligation.
I really hope you still follow me. The truth of Rembrandt’s assessment as a fraudster is based on the documents discussed in today. These must first be properly analysed. I will follow with the last two possible meanings of the term that concerns us. Then follows my conclusion.
5.4 An expression of a conditional allocation
Another possible meaning of ‘bewijzen’ expresses a conditional allocation according to the law of succession (or the laws of inheritance). The general rule for inheritance in the mid-17th century when a minor child was involved, was that the surviving parent had to establish a partition of the joint estate before the Orphan Chamber. Therefore, ‘bewesen’ could indicate a (conditional) division and allocation of a part of the joint goods (‘scheiding en deling’). The consequence of such a view is that Rembrandt retained full ownership and possession (control) of the undivided estate, with the consent of Saskia’s cousin Hendrik Uylenburgh. It seems therefore that Rembrandt was obeying Saskia’s wishes, with the effect that Titus would receive the house from the joint estate whereas Rembrandt would receive paintings, books, frames, statutes and other art-related items. The joint estate remained intact and had the same value, however certain parts within it were allocated to either Titus or to Rembrandt. In the view that the full inheritance resulted in a community of property, ‘bewijzen’ (no documents have been found, however) reflects a value of the house for Titus. That value is comparable to the value of art, goods, materials used in the art studio, tools etc., which were allocated to Rembrandt. The view developed here may indeed have found its expression with a registration in Titus’ name (the view held under 5.2).
5.5 A full legal transfer
The last view I mention is the one generally held: Rembrandt ‘assigned’ the house to Titus.
Certainly, ‘bewijzen’ may have been initiated for other reasons, for instance in relation to a remarriage. Indeed, in the literature ‘bewijzen’ of a parental inheritance is presented as a condition for remarriage. Other reasons could have been the wish to avoid certain taxation, to demonstrate to the Frisian family that Rembrandt wished to follow the legal rules of Holland, or ‘bewijzen’ as the expression for the designation and acknowledgment of Titus’ claim on the house in front of the Orphan Chamber, to be registered in the Orphan Register, which was done in 1656.
However, a real legally valid transfer is all the more unlikely, because the description of the object (the house) is actually much too vague to be regarded as a legal obligation.
6 Debate continues
My book dates from the end of 2021. Two years after the so-called Rembrandt-year in 2019 (350 years after Rembrandt’s death), also in 2021 two legal historians of University of Tilburg (Dave De ruysscher & Cornelis M. in ’t Veld) wrote an extensive article, titled ‘Rembrandt’s insolvency: The artist as legal actor’.
In their research they have found that Rembrandt was a meticulous entrepreneur. He used the legal framework to its utmost advantage, but without breaching its rules. Evidently, they discuss what the call his most controversial act the assignment (‘bewijs’) of his house to his son Titus in May 1656, just a few weeks before he filed for insolvency (‘cessie van goede’).
Their conclusion is unmistakably: from legal doctrine (the law of the city of Amsterdam and the Roman-Dutch legal doctrine), the course of affairs in Rembrandt’s case, and from similar assignments available in the archives, follows that the assignment cannot be regarded as a transfer (or conveyance). It must be regard as a promise and collateral swap.
Publication of scientific literature is annoyingly slow.
Only in 2022 the scientific debate starts. The legal historians mentioned are divided over almost all legal aspects of the case. To name a few of those: (i) wheather the consent of
Saskia’s family on the ‘bewijs’ of May 1656 was necessary, (ii) whether Rembrandt acted as ‘owner’ when providing the ‘bewijs’ or only as Titus guardian, (iii) the uncertain legal effects of the ‘bewijs’, and (iv) the ultimate goal of the ‘bewijs’: did he maybe Titus become full owner the house when he reached majority, when he was 25 year old?.
The question is and remains a legal hotbed. I notice an ever-growing interest in the financial and legal infrastructure of Holland, and Amsterdam in particular in the 17th century. I would be happy to help if a university could und solid PhD research to further and systematically study these intriguing events. Not only with regard to Rembrandt, but generally with regard to small entrepreneurs, as Rembrandt was. Comparative archival studies can certainly contribute to thorough knowledge of these issues.
According to historian Bosman, ‘Rembrandts plan’ (which is also the title of his 2019 book) was to make a dependants’ arrangement or (surviving) relatives’ arrangement (‘nabestaandenregeling’). To succeed, Bosman’s core argument is that Rembrandt wanted to keep the house outside of any bankruptcy he himself planned. As follows from the above, this would only be possible with an actual and true legal transfer (leaving aside an action to annul such a transfer). Bosman, in my view, does not succeed in proving this latter point. A legal transfer cannot be achieved with a single ascription or a conditional allocation. The expectation reflected in the core premise of his book, with the subtitle ‘The true history of his bankruptcy’ (‘De ware geschiedenis van zijn faillissement’), is therefore not met.
7 Were Rembrandt’s acts detrimental to his creditors?
Acts that are detrimental to creditors can, under certain circumstances, be sanctioned. That’s true for today in the legal systems of all EU member states, and it was the general system in Amsterdam in the 17th century. A rather common sanction is that the debtor’s legal act towards a third person, when taken in a certain period prior to the initiation of insolvency proceedings (so-called suspect period), is void. Rembrandt’s insolvency followed some five weeks after his notification to the Orphan Chambre.
In 1962, from his historical overview of the so-called bankruptcy pauliana (actio Pauliana or ‘faillissementspauliana’) in old Dutch statutes and ordinances, Dutch legal historian Ankum draws the conclusion that certain acts could be annulled if they were performed by a debtor shortly before his insolvency (in the meaning of bankruptcy liquidation). These actions mainly affected, Ankum observes, ‘… a limited number of transactions, namely transfers of ownership by a debtor for the benefit of one of his creditors to the detriment of the others’. Ankum cites an Amsterdam statute (keur) from 1644 that stipulates that all transfers of ownership of movable and immovable property executed as payment or to secure past debts (‘gepasseert tot betalinghe of verseekerine van vorige schulden’) will be null and void, unless they are laid down in a public deed at least four weeks (‘ten minsten vier weecken’) before the bankruptcy (‘faillissement’) of the debtor, or unless the creditor of the movable property has actual possession before those four weeks.
There are no documents that indicate that one or more of Rembrandt’s unsecured creditors had instituted an actio Pauliana, an action to nullify a debtor’s earlier detrimental act. I have no knowledge of other sources (in the laws of the State of Holland) giving others the right to invoke such an action, e.g. the aldermen or the Guild of Saint Luke. Moreover, Titus is the holder of a secured right established by law (Holland law provided him ‘ex lege’, by operation of law a ‘legaal hypotheek’). The object of that security is the claim he had against father Rembrandt for what he owed to Titus for his part in his mother’s inheritance. I doubt seriously whether the set of rules concerning the actio Pauliana does affect a legal transaction with Titus, where his right was established ex lege at the time of Saskia’s death in 1642.
Did the statute in question relating to ‘bewijzen’ (as done by Rembrandt towards Titus) resulted in such an act eligible for nullification. The answer simply is: no. The actio Pauliana only applies to an action of the debtor (Rembrandt) that is or results in an actual transfer of ownership.
In ‘t Veld notes that as a valid doctrine in those days, a legal act could be annulled if the beneficiary was aware of the financial situation as well as of the intention of the debtor to favour a third person. However, this condition lapsed when it concerned a minor child under guardianship.
I conclude.
The image that Rembrandt acted to the detriment of creditors with the ‘bewesen’ act seems to persist. Notwithstanding his view that ‘bewesen’ does not mean a legal transfer (an alienation), but instead (in his view) ascription, prof. Cappon submits that it would appear that Rembrandt had unlawfully withdrawn goods from an ‘almost bankrupt’ estate.
The false idea seems headstrong. The ‘bewijs’ cannot be considered as an intended deflection of creditors. Rembrandt has not brought his house outside the reach of his creditors.
References
References referred to can be found under Sources via www.rembrandtsmoney.com.
Dave Deruysscher & Cornelis in ‘t Veld, Rembrandt’s insolvency: The artist as legal actor, in: 134 Oud Holland – Quarterly for Dutch Art History 2021, 9ff.
Machiel Bosman, Rembrandt’s insolvency: A critique, in: 135 Oud Holland – Quarterly for Dutch Art History 2022, 40ff.
Dave Deruysscher & Cornelis in ‘t Veld, Rembrandt’s insolvency: A reply, in: 135 Oud Holland – Quarterly for Dutch Art History 2022, 48ff.