A. Objects in Temporary Custody as Distinguished from Loans
B. Temporary Custody Procedures
D. Sample Temporary Custody Receipt Form
Valid distinctions can be made between those objects loaned to a museum for exhibition and/or for research and those objects deposited with a museum for identification, authentication, examination for purchase, and the like. Objects of the first type are invariably sought out by the museum, and subsequent loans benefit both museum and lender. The second classification covers objects left with the museum on the initiative of the owner in order to accomplish an objective of particular interest to the owner. Both situations result in bailments, but the form of the bailment can vary. As explained in the chapter on loans, when a bailment is for the mutual benefit of the parties, the bailee (museum) is held to a higher standard of care than when the bailment is for the benefit of the owner only. A museum, therefore, can justify having a different liability agreement with those who leave objects for their own benefit. Frequently, such an agreement is called “a temporary custody receipt,” to be distinguished from the traditional loan.1
The temporary custody receipt may state that the bailment is for the benefit of the owner and that the museum is responsible only for gross negligence, or the receipt may notify the owner that although reasonable care will be used, safety is not guaranteed and no insurance will be carried. Either statement, or variations thereof, should put the owner on notice that the museum, with cause, is limiting its liability regarding the deposited material. Such statements probably will not absolve a museum from liability if there is clear-cut evidence of obvious negligence, but they should afford some protection against weak claims or situations in which misfortune rather than negligence is the cause of damage to or loss of the deposited material.2 A museum may prudently decide that it will not individually insure objects left for the benefit of owners because of the more limited risk exposure. However, such a decision should be made only after it is clear whether other insurance carried by the museum may come into play in cases of obvious negligence and/or whether the museum, within limits, can self-insure.
Another distinction that can be made between true loans and objects left for the benefit of owners is that frequently the second category of objects should be processed expeditiously in order to limit expense and liability exposure. Experience demonstrates that unsolicited objects have a greater chance of becoming lost or forgotten if they are not given immediate attention. Time spent searching for such objects and their owners, or trying to recall promises made, is costly. Therefore, a museum should devise and follow a system designed to monitor the flow of such material.
Every collection-type object that comes into a museum should be a matter of record. Accessioning procedures provide a system of immediate notation of objects known to be destined for the collections, and a similar recording system is invariably in place for incoming loans. The use of a temporary custody receipt provides the catchall for recording those objects that, when received, fall into neither the “to be accessioned” nor the true incoming loan category. To be effective, the temporary custody receipt system needs central coordination with established procedures for the issuance of receipts and for the filing and timely follow-up of all such receipts.
A museum can find itself overwhelmed with material deposited for identification and other assorted purposes unless the museum’s collection management policy contains guidelines regarding what and when objects can be taken into custody for the benefit of owners. For example, a museum may find that its liability exposure is greatly reduced if instead of accepting objects on deposit for identification, it sets aside certain times when objects can be brought in for immediate viewing by museum staff. These articles never leave the custody of their owners, and only oral opinions are given.3 This procedure, then, may become the general rule, with exceptions made only for unusual situations. If, on the other hand, a museum generally permits objects to be placed in custody, its collection management policy should have a system for alleviating backlogs. If too many objects are accumulating, perhaps the museum should establish a mechanism for instituting a moratorium on the acceptance of additional objects until the backlog is reduced to a manageable level. The museum should not encourage problems by taking in objects when prompt attention cannot be given to them. The museum’s collection management policy also should stipulate who has the authority to approve the issuance of temporary custody receipts.
How an object is received should be a matter of record. For example, if an unsolicited object is mailed to a museum, its method of delivery may be an important piece of information in weighing museum liability if the owner later claims negligence.4 If the temporary custody receipt form has a space for describing mode of delivery, this information is captured. Ideally, unsolicited objects mailed to a museum should be returned immediately with or without the requested information, or a temporary deposit receipt should be mailed for signature. By definition, the ideal is not the reality.
Another important consideration is the establishment of a maximum duration period for the temporary custody receipt. Every such receipt, when issued, should have a clearly specified termination date so that owner and museum staff are aware that a return date must be met. This encourages prompt processing by the museum, and it establishes a time for the bailment to end, which can be important if the owner fails to retrieve the property. Although staff may be given some discretion in setting the term of a custody receipt, a museum-wide maximum term should be established, one that cannot be exceeded without special permission. Ninety days is the maximum period used by some museums, but each museum can tailor the period to suit its own capabilities and needs.
The temporary custody receipt form may also address certain other topics that can prove troublesome if not explained in advance. Some museums have found, to their dismay, that owners who have temporarily deposited objects have then misused museum custody for personal gain. For instance, a temporary custody receipt usually requires the owner to describe briefly the object and its value. Owners have been known later to tout the attribution and/or valuation as “museum endorsed” merely because the information was accepted by the museum without comment. Another example is the owner who drops off an object at Museum X for possible sale. If there is no sale, the object is then offered elsewhere, with the owner noting that it was once on loan to Museum X. Cautions against such misuse can be included in the list of conditions that frequently appear on the back of the temporary custody receipt form.
If the museum wants to have the right to photograph such objects or to examine them by generally accepted methods, this should be noted on the form. The form can also explain how this information will be used. As with incoming loans, a museum avoids restoring, treating, or otherwise altering objects left in its temporary custody unless the written permission of owners has been obtained. It may be prudent for a museum to note this particular policy on the receipt form.
If the temporary custody receipt is used occasionally for objects that are being offered to the museum for donation or sale, the museum may want to have the owner warrant, at this stage, his or her ability to pass good title. By including such a provision in the custody receipt, the owner is put on early notice that proof of title is important, and possible difficulties in this area can then be resolved before internal museum review procedures are set in motion.
Two major purposes in establishing a temporary custody receipt procedure are to ensure the prompt return of objects to their owners and, if return cannot be made, to prevent museum storage areas from becoming cluttered with unclaimed objects. As with incoming loans, these purposes cannot be accomplished effectively unless certain precautions are taken when the objects are received. The temporary custody receipt form should require the owner to specify exactly what method should be used to return the object when the period of custody ends. It should also describe the steps the museum will take if the object cannot be returned after reasonable efforts are made. Finally, the form can provide that an unrestricted gift of the object to the museum will be inferred if the object is not claimed after a specified holding period. Both Chapter VII, “Unclaimed Loans,” and Chapter VI, “Loans: Incoming and Outgoing,” Section A.9, “Return Provisions,” should be reviewed for an understanding of why these provisions may prove important to the museum. Chapter VI, Section A.8, “Change in Ownership,” also is relevant when a museum is designing its temporary custody receipt form.
The sample temporary custody receipt form (see Figure IX.1), like any other form, should not be adopted without question by a museum. Before any form is used, every provision should be understood by staff and judged appropriate. If there is uncertainty, professional advice should be sought.
Figure IX.1
Sample Temporary Custody Receipt Form
1. In some instances, questions can arise as to whether a temporary custody receipt or an incoming loan agreement is in order. For example, if someone offers to donate an object to the museum and the museum wants to have the object in hand for a period of time in order to make a decision on whether to accept, then a short-term incoming loan agreement may be more appropriate. The justification would be that the museum is requesting a period of custody for its own purposes and that, hence, it should provide the owner with insurance coverage. Common sense should be the guide.
2. In Chapter VI, “Loans: Incoming and Outgoing,” see Section A, “Incoming Loans,” regarding the ability to limit liability, and Chapter VI, footnote 3, regarding the definition of “gross negligence.”
3. See Chapter XIII, “Appraisals and Authentications,” for other problems pertaining to an authentication service.
4. It may legitimately be argued that when a museum receives, through the mail, unsolicited objects for identification or similar reasons, a constructive bailment is created. In a constructive bailment, the law implies a bailment even though there is no mutual consent between the parties, but the unconsenting bailee is usually held to a low standard of care. If the museum consents to the bailment by issuing a temporary custody receipt, a slightly higher standard of care is generally expected.