LEGAL ISSUES AFFECTING LOANS OF WORKS OF ART IN BELGIUM.
| Author | Demarsin, B. |
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INTRODUCTION AND OVERVIEW
Art loans (both short-term and long-term) are a practice very common among public museums and private collectors in Belgium, both on the giving and on the receiving end.
Within the Belgian federation, the policy field of culture and (movable) heritage have been almost entirely devolved to the federated entities. As such, most public museums and heritage actors fall under the responsibility of either the Flemish (in Flanders), the French (in Wallonia) or the German-speaking Community (in the eastern border region with Germany) and their governments. However, the Belgian federation still is in charge of a very restricted list of so-called federal cultural institutions, that serve all three linguistic communities without any distinction (for example, the Royal Museums of Fine Arts, Royal Museum of Art and History, etc.). Depending on the scale and the purpose of the project, art loans occur between institutions and collectors within the same community. However, art loans are equally common between collectors or institutions belonging to different communities. In addition, the federal institutions can be involved, as can foreign collectors and institutions (e.g. touring blockbuster exhibitions at the international level). All depends on the nature of the project and its budget.
All the responsible authorities in Belgium formally underwrite and endorse the EU initiatives to stimulate collection mobility, such as the Report on Practical Ways to Reduce the Cost of Lending and Borrowing of Cultural Objects among the Member States of the European Union. (1) Collection mobility is a much-debated topic among heritage organisations in Belgium and various legal or financial initiatives serve that goal. (2)
While litigation is relatively common in relation to authenticity disputes or art theft and provenance issues arising out of wartime looting, it is less common in relation to a dispute arising out of the loan of artworks. This is true both at the international level and within Belgium specifically. Nevertheless, over the past decade there have been a number of disputes relating to art loans that have troubled Belgian art institutions or collectors. Depending on the parties involved or the nature of the problem that lay at root of the conflict, some of these cases even received significant media attention, as they have been reported in both specialised and general press publications.
In some instances, the disputes end happily, as was the case when two works by Frits Van den Berghe (1883-1939), a leading Belgian expressionist and surrealist painter and illustrator, were returned. More than 75 years after the Museum of Fine Arts of Ghent was entrusted with two loans, they finally made their way back to the heirs of the lender and original owner, his two daughters, since the lender himself had passed away many years previously. What had happened? When Frits Van den Berghe, a Ghent-born citizen, died in 1939, the Museum decided to organise a grand retrospective to honour the famous artist. Therefore, it called upon private collectors to lend pieces by Van den Berghe to the Museum. Emile Henri David responded to this call and who brought in two paintings, entitled Nude Wearing a Trail (1928) and Two Seated Nude Figures (1930) to be exhibited in the retrospective. However, the planned exhibition never took place, as the Second World War broke out. The Museum kept all the works in its custody and when the war was over, the curator sent out letters to all lenders, including Mr David. However, these letters to Mr David were returned to the curator, specifying that there was no Mr David to be found at his prewar address. The Ghent Museum reasoned that the owner had probably failed to survive the Holocaust, which was not so unlikely, as Emile Henri David was a known, politically very outspoken leftwing activist of Jewish descent. And so the paintings remained in the museum depot. With the benefit of hindsight, one can say that the Museum certainly failed to make any serious efforts to actually locate Mr David, as he was still alive and even living in Belgium, but not at his former Brussels address. By constantly moving, Mr David had managed to escape Nazi persecution and deportation to the death camps. After the war, he never reached out to the Museum. The long years of Nazi terror and the struggle for life had probably caused him to forget about the two paintings he had given on loan to the Ghent Museum for the retrospective. It was not until recent restitution efforts, made by the Belgian public authorities in response to the 1998 Washington Principles, that the paintings' rightful owners were retraced and that the 'loan agreement' came to end. (3)
Another well-known controversy concerned the furniture of the Royal Palace in Antwerp. The building dates back to the eighteenth century, when a wealthy Antwerp entrepreneur invested his inheritance in bricks and mortar. Some time later, the palatial residence in the city centre of Antwerp ended up in the hands of foreign rulers like Napoleon Bonaparte and William I of Orange, the King of the United Kingdom of the Netherlands (1815-1830). When Belgium gained its independence in 1830 the Palace was occasionally used by the Belgian Royal Family, yet by the late 1960s it had been declared unfit for royal occupation. Hence King Baudouin agreed to hand it over to the Flemish Ministry of Culture which arranged to have it restored. In the late 1980s, then Prince Philippe (now King Philippe of Belgium) borrowed some pieces of furniture from the Royal Palace of Antwerp. Among the items were a bed made for Napoleon's wife Josephine, an antique marble fireplace and an exclusive wooden cabinet. Altogether, 150 items were given on loan, although apparently only 23 chairs and two consoles were used by the Prince to furnish his official residences. The rest ended up in a number of federal museums or institutions in Brussels. When restoration plans were drawn up, the Flemish Government requested the return of the furniture. Despite numerous requests, for years the Prince stalled. Finally, in September 2008 an agreement was reached, although it wasn't until very recently that the missing pieces of furniture were returned to their original home. The case of the borrowed furniture is often referred to as an illustration of the institutional complexity of the Belgian federation and the country's museum industry.
In 2013, several foreign institutions that had lent works to the Brussels Royal Museum of Fine Arts certainly had some sleepless nights when water leaks in the roof threatened their centuries-old works. The threat of water damage even forced the Museum to temporarily close in 2013. The prestigious exhibition devoted to Rogier van der Weyden had to end prematurely and the Museum's reputation among lenders and fellow institutions was forever damaged. (4) Much applauded, on the other hand, was the massive art loan programme of the Antwerp Museum of Fine Arts, that during its ten-year renovation sent out many of its masterpieces for exhibition in other museums around the globe. (5)
Finally, the painful case of a series of art loans from the so-called Toporovski collection to the Ghent Museum of Fine Arts cannot go unmentioned. In early 2018, the Museum was forced to remove several Russian Modernist works after a group of leading experts on Russian Avant-Garde had questioned their authenticity in an open letter published in the Art Newspaper, (6) It turned out that the Museum had accepted loans and agreed to exhibit them in a rather naive and unprofessional way. These events ultimately led to the resignation of the Museum Director, who was first suspended and later dismissed by the Ghent City Council. (7) The Toporovski case immediately became a legal classic when it comes to art loans and the legal/ethical obligations that arise from them.
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BASIC LEGAL STRUCTURE OF ART LOANS
Under Belgian law there are no specific legal requirements for art loans. Since art loans are based on a contract, general contract law applies. In addition, the Belgian Civil Code also has a limited number of provisions that specifically concern loan agreements. Obviously, these provisions also apply and even set aside general contract law to the extent that they are incompatible. Accordingly, all relevant legal provisions are to be found in the Belgian Civil Code. Book III, Title 3 brings together the general principles of contract law and Book III, Title 10 groups the specific provisions regarding loan agreements.
There are no formal requirements for (art) loan contracts. A loan contract does not even have to be in writing. However, whilst oral contracts are valid, they render things considerably more complicated, as both parties will find it hard to prove the true scope and purport of their contractual arrangements. After all, loans of artworks or cultural artefacts will most often exceed the financial threshold set by article 8.9 of the Belgian Civil Code which provides that if the value of the contract exceeds 3,500 [euro], only written evidence will be admissible in court proceedings. As a result, art loans may not need to be in writing to be valid, yet a written contract is most often required for evidentiary reasons.
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LEGAL CONSTRAINTS ON ART LOANS
According to article 1878 of the Belgian Civil Code, all merchantable goods (such as artworks and cultural artefacts) can be the object of a loan agreement. (8) Obviously, there may be practical obstacles against lending a certain piece, due to its physical condition, its excessive size, etc. However, not only practical but also legal constraints may exist and restrict or even impede lending. Conditions attached to gifts and bequests of works of art may have such an effect. Belgian law allows donors to maintain a certain degree of control over the good they have donated by making their gift or bequest conditional. A donor of an art...
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