D. When the Museum Wants to Dispose of Objects Found in the Collections
The phrase “objects found in the collections” is frequently used in the museum profession to describe items that lack any significant documentation as to how they were added to the collections. In other words, the museum knows that these objects have been in its possession for some time, yet if called on, it cannot prove ownership with certainty because it does not have definitive records. For the purposes of this discussion, the phrase does not include unclaimed loans, a subject discussed in Chapter VII, “Unclaimed Loans.” As a general rule, objects found in the collections are distinguishable from unclaimed loans. There is no evidence that objects found in the collections entered as loans, and their continued undisturbed possession by the museum usually supports a presumption of a valid initial transfer of ownership. This means that anyone disputing this presumption has the “burden of proof.” (In simple language, the claimant must come forward with better proof of ownership than the museum.)1 In the case of unclaimed loans, however, there was clearly no initial transfer of ownership to the museum, and if the museum hopes to retain the material, it has the burden of proving why the lender has lost the right to claim the property. In this latter case, the museum now has the more difficult task, and this distinction makes a crucial difference.
The fact that undocumented objects are fairly common in museum collections should come as no great surprise to anyone familiar with the history of museums. Many museums were begun by public-spirited individuals operating with limited funds and/or without the help of well-trained support staff. (The museum registrar or the museum collection manager of today is a fairly recent addition to the professional ranks of the museum community.) If funds and staff for record keeping were available, these systems were often quite personalized and hence lacked continuity. Also, the orderly preservation of records and the periodic checking of records against museum inventory are costly tasks that, realistically, do not gain priority if funds are short. We can easily understand, therefore, why museums, particularly those that were founded generations ago or that had very informal beginnings, now have undocumented objects in their collections. The problem is a cause of general concern, but it becomes more acute when a museum wants to dispose of such objects or when someone comes forward to claim one of the objects. What is the position of the museum?
First, the museum should consider the status of the claimant. Normally, as previously explained, the burden of proving ownership rests on the claimant. In other words, to prevail, the claimant must show that only he or she has the right to bring the claim and then must prove the claim. Until this is done, the museum need not budge. To decide whether the claimant has the right to pursue the claim (i.e., has standing to bring the claim), the museum usually requires certain information from the claimant:
1. A clear explanation of why the claimant believes he or she holds title, with copies of supporting evidence
2. A statement from the claimant that he or she either is the sole party at interest or is authorized to represent all parties at interest, with supporting proof
Sometimes the second request can be a stumbling block for the claimant. If, for example, the claim is based on the allegation that the object in question was lent to the museum years ago by an ancestor, the claimant must show, by family records, relevant testamentary instruments, or other evidence, that he or she is the sole heir of that ancestor. If not the sole heir, the claimant must produce satisfactory proof that all other heirs have given him or her permission to represent them in the matter. Technically, if a claimant cannot produce satisfactory evidence of the sole right to make the claim (or evidence of the power to represent all claimants), the museum need not go further. However, it should (and, as appropriate, after seeking legal advice) inform the claimant in writing why it disputes his or her right to bring the claim.
When the precise nature of the claim is known and the claimant appears to have the right to make the demand, the museum will want to review its records with great care to see whether it can find evidence that supports or contradicts the claim and whether it has evidence that will support a valid defense. The defenses that are most often used are the running of a statute of limitations, laches, and adverse possession. Each of these defenses has been discussed in some detail in Chapter VII, “Unclaimed Loans.” Essentially, to support a defense in claims of this nature, the museum looks for several kinds of evidence:
1. Evidence that the claimant knew, or should have known, the museum thought it owned the object and that the claimant delayed in bringing the action, to the detriment of the museum
2. Evidence that the claimant “slept on his or her rights,” that is, failed to use due diligence in seeking out the property
3. Evidence that the museum has publicly displayed the object as its own or has otherwise publicized it as such (this type of evidence can affect items 1 and 2)
After relevant information has been gathered, the evaluation of a claim frequently should be done with professional advice. The museum also will want to review its general trust responsibilities regarding protection of trust assets, as described in Chapter V, “The Disposal of Objects: Deaccessioning,” Section C, “Requests for the Return of Collection Objects.” It is to the museum’s advantage to resolve a claim as soon as possible. If the claim is determined to be valid, a timely response creates goodwill. If the claim is determined to be unproven, a clear letter to this effect puts the claimant on notice and starts a statute of limitations running—a statute that limits the time in which the claimant can challenge in court the museum’s rejection of the claim.
If there is legitimate doubt as to the validity of a claim or if the claim appears to be valid but there are several claimants and some are reluctant to see the object removed from public use, the museum might suggest an alternative. If the claimant or claimants are willing to give to the museum in writing every right, title, and interest they may have in the object, possibly there may be legitimate tax advantages for the claimants. In either case, the claimants relinquish a chance to win a judgment in court, and in effect, this chance to win is being donated to the museum. The value that can be placed on such a gift is a matter for resolution between the donor and the Internal Revenue Service. If such a quitclaim-type deed of gift is executed, the museum’s title to the object should then be secure.
As explained in Chapter IV, “The Acquisition of Objects: Accessioning,”2 the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) addresses, as one of its concerns, the return to Native Americans of human remains and certain cultural objects from museum collections. If a museum receives a claim for the return of an undocumented object or human remains that could fall under the purview of NAGPRA, the first order of business is to determine whether NAGPRA applies. If it does, the claim should be processed under the procedures and presumptions set forth in that statute.
There are two situations that come to mind where the analysis described in this chapter’s Section B may be held not to apply because of the existence of an overriding statute. One of the statutes is NAGPRA, and the other could be an applicable state statute that has a unique definition of what constitutes an “old loan.”
As explained in Chapter IV, “The Acquisition of Objects: Accessioning,” NAGPRA addresses, as one of its concerns, the return to Native Americans of human remains and certain cultural objects from museum collections. If a museum receives a claim for the return of an undocumented object or human remains that could fall under the purview of NAGPRA, the first order of business is to determine whether NAGPRA applies. If it does, the claim should be processed under the procedures and presumptions set forth in that statute.
Chapter VII, “Unclaimed Loans,” discusses what we call the “old loan problem” and the usual ways in which these cases are resolved. It also describes specific legislation that individual states may have passed that sets forth a process for determining who may prevail when title to such a loan is being contested. Some of these statutes define the term “old loan” in such a way that it includes what this text defines as an “object found in the collections.” In such situations, it is important for a museum to get legal advice on how a particular statute with such a broad definition of “old loan” is being interpreted. Possibly the statute mandates that “old loans,” as defined therein, be processed in a set way.
The disposal of objects of unconfirmed ownership presents risks. These risks should be understood so that informed decisions can be made when there is pressure to prune such objects from the collections. As explained in earlier chapters,3 as a general rule, if a museum cannot successfully refute a third party’s assertion and proof of ownership to an object, that object must be returned on demand. If the object is no longer in the possession of the museum because the object has been given away or sold and if the claimant pursues his or her interest against the present holder, the museum can expect repercussions.
If the museum sold the object to the present holder without reservations about title and if the holder subsequently must return the object to the true owner, the museum may be forced to pay the holder the value of the object as of the date of its return. This is because the Uniform Commercial Code4 includes a general implied warranty that a seller conveys good title and because the code also provides that if a purchaser does not acquire good title, he or she can elect to claim against the seller damages equal to the present value of the object.5
A museum could attempt to protect itself from suit by a disappointed purchaser by selling an object and expressly not warranting title. Naturally, it then can expect that the purchase price will reflect this limitation. Another alternative is to state in the sale agreement that any recovery by the purchaser is limited to the sale price. Here again this provision may affect what the purchaser is willing to pay.
If the museum gives away an object of unconfirmed ownership, the Uniform Commercial Code should not be applicable (there was no sale), and if the present holder is ultimately forced to return the object, the holder may have no recourse against the donor museum.6 To sue the museum successfully, the holder, as a rule, would have to demonstrate that the holder was damaged because of the donation. However, if the true owner cannot retrieve the object from the present holder or if the object has been damaged, the museum may well find itself subject to suit.
When considering the disposal of objects of unconfirmed ownership, a museum can rarely deal in generalities. The facts of each particular case must be researched and weighed so that informed judgments can be made about the strength of the museum’s position if there is a challenge, as well as about the potential risks. Additional factors that might be considered in such an analysis are as follows:
• What is the value of the object in question? This bears on the extent of the potential liability. Value also may indicate whether a third party will ever seriously search out the item.7
• Is the object quite distinctive, so that it is readily identifiable? The more common the object, the more difficult it might be to establish ownership.
• Has the object ever been displayed publicly as property of the museum? In other words, if the museum has consistently and publicly held the object as its own, the museum has a greater chance of a valid defense if a third party later comes forward to claim it.8
• What is the proposed method of disposal, sale, or donation, and how urgent is the need? For instance, donating several large, relatively worthless objects to a charitable organization in order to gain desperately needed space should be easier to justify than selling small, costly objects in order to feed the museum’s general acquisition fund.
All in all, there are no quick, easy answers to the problems raised by “objects found in the collections.” However, if a museum can afford the time and the money required to research records carefully and to obtain the necessary professional advice, some ameliorating steps may be worth consideration.
1. If the objects at issue could be Native American, note especially the last paragraph of this chapter’s Section B, “When Claims Are Made.”
2. See Chapter IV, “The Acquisition of Objects: Accessioning,” Section D.6.i, “Native American Graves Protection and Repatriation Act.”
3. See Chapter IV, “The Acquisition of Objects: Accessioning,” Section D, “Circumstances That Can Affect the Quality of Title,” and see also Chapter VII, “Unclaimed Loans.”
4. Section 2–231. See the discussion on the Uniform Commercial Code in Chapter IV, “The Acquisition of Objects: Accessioning,” Section D.3, “Warranties in a Sale and the Uniform Commercial Code.”
5. Section 2–714(2) of the Uniform Commercial Code. Consider also that in such a sale there need not be an intervening third party. If the purchaser subsequently learns that title is faulty, he or she may elect to return the object to the seller and seek present-day value.
6. An exchange of objects would normally constitute a sale, not a gift.
7. However, certain objects have been known to increase in value dramatically because of changes in public taste. But in some situations the objects will clearly never be of museum quality, and continued storage is a waste of resources. Here, after carefully documenting the nature of the objects and their determined value, the museum can dispose of the objects. If anyone should come forward to make a claim, the museum, because of its documentation (which, of course, it retains indefinitely), should be able to easily establish that nothing of value is at issue.
8. See prior discussions in Chapter VII, “Unclaimed Loans,” on the defenses of statutes of limitations, laches, and adverse possession. But if NAGPRA applies (see this chapter’s Section B, “When Claims Are Made”), these defenses may not be relevant.