A Spanish Tug-of-War

Posted on: May 8, 2015 by

An interesting recent article in the New York Times recounts the struggle between two Spanish Museums over the right to display four paintings, including two masterpieces of European art (Hieronymus Bosch’s The Garden of Earthly Delights and Rogier van der Weyden’s Descent from the Cross).

The works have been held at the Prado Museum in Madrid since being sent there for safekeeping during the Spanish Civil War in the 1930s. But seeing as they formed part of the royal collection, the Spanish heritage agency that administers all royal holdings (the Patrimonio Nacional) wants them back. This is because a new museum is being built, the Museum of Royal Collections, which the agency hopes will be able to display the disputed works, seeing as they are royal property.

There is apparently no doubt that the works belong to the royal collection. All are listed at the Prado as being “on loan”.

To some, the dispute between agency and museum may seem unnecessary. They are, after all, both public entities. Both effectively serve the public good. Nor is there a question about ownership. The Prado doesn’t claim to hold title to these works, only the right to display them. If indeed it can be called a right. The argument in favour of the status quo is that these works have become associated with the Prado (and, if you will, its brand) and so the Prado believes it is best placed to go on displaying them. Sound familiar?

In any event, it would strike someone from an English-speaking country as odd that in a bailment relationship such as this, the bailor would not be able to demand the immediate return of the bailed objects. Even if ‘bailment’ is a concept from English common law, a distant relation exists in the ‘deposit’ of Continental systems. So depending on how the loan agreements were drafted (if indeed such written agreements exist, seeing as the objects came to the Prado in the midst of a civil war), it would be surprising to think that the rights of the original lender (or bailor/depositor) would not pass to the Patrimonio Nacional. And so the agency should be able to demand the return of the works, no?

Then again, these being two public bodies, the decision will ultimately be political. Which is probably what all the fuss is about.