Sandra Sykora, Lawyer,
Art Historian, Switzerland
This talk seemed like a great opportunity to compare the
different approaches to loan agreements, which as Registrars many of us deal
with on a weekly if not daily basis, but probably don’t have the time to sit
down and analyse comparatively in great numbers.
Sandra started by making clear that the content of her
presentation was observational and not exhaustive. She had received 44 samples
from 20 different countries prior to the conference, the loan agreements had
been submitted by different types of institution (art handling companies,
universities, foundations and museums) and varied in length from 1 to 10 (!)
pages.
The first interesting point that Sandra made was that in
Anglo-American, or common, law loan agreements are not considered legally
binding, they can’t be “contracts” as no money is exchanged. This perhaps
explains why some large UK National Museums don’t regularly use loan out
agreements. Under European, or Civil, law loan agreements are legally binding.
Sandra found that some organisations were happy to share
their loan agreements, and these tended to be the same who displayed more of
their loans policies, decision making criteria and terms online. Some private
institutions seemed to discourage lending, and were reluctant to share their
agreements.
One thing which was highlighted by some Registrars as part
of the research was that they wouldn’t be able to accept their own loan out agreement terms if they were borrowing – the
conditions were too strict and in their own loan in agreements these were
relaxed quite considerably. This raises questions about reciprocity and whether
we’re asking for far too much from our borrowers.
Sandra questioned whether loan-in agreements were needed at
all if the trend showed that most lenders liked to determine the conditions of
the loan, holding the power in that relationship. There are perhaps
individuals, artists and private lenders who wouldn’t have their own paperwork,
though, where loan-in agreements would be more suitable.
Many of the loan out agreements which Sandra has analysed covered
the same topics: the basics of the loan, transport, display, packing and
shipping, insurance or indemnity, environment and termination.
For the clauses determining object care, many lenders made
use of these to control the borrower environment. The majority of agreements
referred to standard museum environmental conditions, some reflecting the Bizot
guidelines, where some gave very specific parameters they needed the borrower
to meet.
Sandra cautioned against blandly accepting the insurance
conditions stipulated by a lender without first checking that this matches your
own insurance coverage, as a borrower, and what you are able to provide. Some
lenders had stipulated specific brokers in their agreements and the majority asked
for “nail to nail” cover – Sandra had seen this terminology in a loan agreement
dating back to 1924 so this is pretty standard and longstanding wording in the
museum world!
The presentation closed with the following key tips:
- Be specific about the who/what/when/where
- Ensure there are no contradictions within the text!
- Use English as the language of the agreement, or at least provide an English translation so that your agreement can be understood internationally
- Try to avoid terms that the borrower can’t possibly fulfil, particularly to do with environment and insurance, and bear in mind that reciprocity is key to all good museum lending relationships!
If we can
all at least remember these last few points when negotiating with borrowers
during our loans out conversations this should help to encourage a stronger,
more sustained approach to lending within the sector.
By Becky Rhodes, Registration Manager,
Science Museum Group
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