The gift vs. loan problem for museums

Posted on: August 14, 2015 by

Having finished the IAL refresher course in Melbourne this week (with the full Diploma in Law and Collections Management course starting next Monday), it has become clear yet again the difficulties which museums face when dealing with certain objects in their collections. The difficulties stem from an uncertainty as to whether an object has been given (‘gifted’ or donated) to the museum or whether it was the subject of a loan. This is often made worse by use of such misnomers as the ‘permanent loan’ (how can it be a loan when it is permanent?) and the general unwillingness of some benefactors to part with their prized possessions. Collections managers are left with many questions: Does the museum own this object? If not, which descendent of the original owner owns it now? Can we do what we like with it? Can we sell it? Do we need some sort of permission?

While these questions will of course depend on the particular circumstance of each case, it is important to understand the law of gift in order to see whether the museum can indeed claim ownership of an object. A deed of gift would make this ownership clear, but often no such deed exists. Thus the general law of gift (requiring delivery, acceptance and donative intent) will apply. Thankfully two recent cases dealing with cultural property affirm the central point – an arbitral decision involving artworks from the collection of Lord Beaverbrook and the English Court of Appeal’s decision involving the musical manuscripts of composer Sir Malcolm Arnold – that once a gift has been perfected, title passes to the donee and the gift cannot be revoked. What’s done is done. This means that regardless of the subsequent acts and intentions of the donor, if the gift has been made (delivery plus acceptance plus donative intent), the museum will have already become the owner. It will therefore be up to the museum to choose how to proceed.