A:1
"Bemused" best describes my thoughts on permanent loans. Why would a museum accept fiduciary responsibility for works it clearly does not own? One only need look at the long and expensive legal mess that ensued when members of the Beaverbrook family assumed they had ownership of the gallery’s collection decades after it was placed with the Beaverbrook Art Gallery.
The CMA Ethics Guidelines indicate the practice of permanent loans should be avoided, as the term is unlikely to have any legal status. The Guidelines suggest the transaction is better described as a “renewable or long-term loan” (CMA Ethics Guidelines p.9). Indeed, many institutions have clauses in their collection policies indicating they will not accept permanent loans because of the complex issues related to ownership versus custodianship.
If a museum does decide to accept a permanent loan it is incumbent on the museum to define clearly, preferably in a legal contract, who is responsible for valuing the works, assessing insurance costs and determining who covers them, managing and paying for any conservation and/or restoration, and how the works may be used (i.e. in exhibition programming), and so on.
The collector benefits from having the works housed safely, and the luxury of expert opinions for treatment, if required. The museum must make a detailed condition report of each work available to the collector so both parties are aware of its state at the time the loan is accepted. The collector should be willing to cover insurance and conservation costs, and the museum should only be responsible for repairs if damage occurs while in their care.
If a work on permanent loan is requested by another institution for an exhibition, it should be the borrower’s responsibility to pay for any conservation work necessary to make the work ready for public display. If the borrowing institution cannot afford the conservation, then the collector should be notified and asked if they want to cover the costs, as any exhibition and related publication will only enhance the overall value of their property.
Jann LM Bailey, FCMA, Executive Director, Kamloops Art Gallery
A:2
I am going to give you a legalistic answer to this query. We actually had to investigate the issue of a museum’s rights and obligations to its lenders and depositors. Here is the recommendation of our legal adviser.
Please note that this answer applies only to Quebec, as it refers to Quebec civil law, which is different from that of the other provinces; but it can still serve as an example.
First consider the meaning of the term Loan, and more specifically Loan for use:
- Loan for use is a gratuitous contract by which a person, the lender, hands over property to another person, the borrower, for his use, under the obligation to return it to him after a certain time.
- The property is delivered to the borrower for his benefit, but the borrower is bound to act with prudence and diligence in the safekeeping and preservation of the property loaned.
- The borrower is bound to pay for any necessary and urgent conservation measures, as these are the only expenses for which he is entitled to reimbursement from the lender.
- This clearly refers to expenses relating to the preservation of the property and not to expenses incurred in using the property.
To respond specifically to the question, according to our interpretation of Quebec law, the museum would be required to carry out conservation treatments that are necessary and urgent, but the cost of these measures should be borne by the lender to whom the works belong and to whom they will be returned at the end of the loan agreement.
Please note that this interpretation applies only to loans and not to deposits, as there is a difference between them. I repeat that, obviously, this is strictly a legalistic interpretation, and probably many other types of agreements can be negotiated between the parties.
Andrée Gendreau, Ph.D., Director, Office of Research and Evaluation, Musée de la civilisation
A:3
A collector may or may not think about things like conservation of works; frequently s/he is so preoccupied by the beauty and significance of the work there is no thought of deterioration. The museum, on the other hand, knows that deterioration naturally occurs and should always be thinking about maintaining the collection on offer. The museum’s willingness to receive these works implies a willingness and capacity to care for them.
The museum should have ensured that the lease agreement included an agreement on covering the costs of any restoration that may be required. If the museum was negligent, and didn’t think of including a legal agreement on this matter, then I believe the responsibility for the costs of restoration rest with the museum.
Brenda Berck, FCMA
A:4
This question points to the need for thoughtful and legally binding agreements signed by both the museum and the owner of artefacts or collections when they are placed on loan. Here, it seems that the parties signed a basic agreement without giving a great deal of thought to the future. In this case perhaps the best course of action would be to renegotiate the agreement. If possible, this gives rise to several questions:
1. Is the current owner the same person who signed the initial agreement? If not, does the current owner have the same intentions as the initial owner with regard to the collection? Were those intentions written down? If that person is now deceased is there any reference to the collection in the will?
2. Was the condition of each piece assessed when they were turned over to the museum? Without such an assessment it is im-possible to say whether the collection has deteriorated over time. If the collection is to be reassessed, who will pay for it?
3. Should the owner cover part or all of the costs of any restoration work or repairs, and should it be considered whether restoration is necessary due to the initial condition of the object or deterioration over time? It is important to note that any restoration or conservation treatment will likely improve the condition, and presumably the value, of a work.
4. Some loan agreements state that the museum will give the same care to artefacts on loan as to those in the permanent collection. This presumes that any deterioration due to normal conditions would be restored when and if funds became available and would not necessarily be considered for all artefacts. Any accidental damage caused by the museum would be repaired by the museum—perhaps calling on its insurance policy to pay for such repairs.
5. Must the museum secure the owner’s permission to conduct restoration work or repairs?
6. How do the insurance companies of both parties see this situation? Is ‘normal’ deterioration insurable?
7. Should the owner pay a percentage of the overhead costs (storage space, heat, light, air conditioning, curatorial care and re-search, etc.)?
8. Does the museum want to return any or part of the collection to the owner?
9. How is the collection treated in the owner’s will? Is a specific person or organization designated to inherit the collection when the lease expires?
Clearly there is no simple answer to this question. It must be dealt with in a mature manner that addresses all aspects of the situation: the past, present, and future concerns of both the museum and the owner. Given the potential difficulties of taking artefacts on loan, some museums have a clear policy against the practice. This eliminates the problems, but then museum does not get to enjoy the artefacts!
Eric J. Ruff, FCMA, Curator Emeritus, Yarmouth County Museum
If you have an ethical question or dilemma you would like to share with us for anonymous publication, please email it to vkiriloff@museums.ca.
