UK: Provenance – Its Value To Art Collectors, Dealers, And Cultural Institutions

Last Updated: 24 April 2018
Article by Alan Eccles

Provenance illuminates fundamental chapters in an art object's life by asking: Where did it come from? Who created and/or commissioned it? Who has owned it (dates and places)? How has its ownership been transferred over time (sale, donation, bequest, theft or looting)? Provenance is also the methodological process through which this information is found – the utilised resources, their credibility and verifiability. This research sheds light on the complex workings of the trade in art and cultural property. Its discoveries continue to show that there are many new things to consider, processes to undertake and laws to abide as a private collector, dealer, or public steward of art and artefacts.

Acquiring, lending and deaccessioning

Increasingly, museums and galleries are implementing standards of due diligence which necessitate the plotting out of provenance before proceeding with acquisitions or incoming loans. It is useful to not only verify that an object left its country of origin or export lawfully, but provenance can also be a key factor in authentication and cultural attribution, thus affecting whether or not the transfer should be carried out, and what the most appropriate context of display will be.

Deaccessioning art without a justifiable reason, or in breach of donor restrictions, can have serious ramifications for an institution. A good example is Northampton Borough Council's contested sale of an ancient Egyptian sculpture of the scribe Sekhemka, whereby loss of public favour accreditation and future funding opportunities were all at stake. On the other hand, a museum should strongly consider deaccessioning anything within its collection that is connected to illicit or illegal activity.

museums and galleries that hold their collections in public trust, the retention of art that was illegally exported or imported, looted from archaeological sites, or seized during World War II has been condemned at local and international levels. Numerous transnational partnerships, such as those set up by the UNESCO Convention of 1970 and the Washington Conference Principles of 1998, were formed to combat the acceptance of this conduct and spur investigations into the origins of collections.

No such thing as a bona fide purchaser

Scotland has not recognised the notion of 'market overt' (scrapped more generally in the sale of goods legislation the UK in the 1990s) or the ability for purchasers of stolen objects to assume good title in the absence of knowledge of the theft. Without this immunity, individuals and organisations are vulnerable to counter claims of ownership with no guarantee of compensation. Taking the opportunity, albeit bittersweet, to investigate the provenance of a collection can help with the assessment of the assets' liquidity; confirming the ability to consign a work at public auction, or make a philanthropic loan or donation, without the fear of a restitution request flagging up.

Three years ago Glasgow City Council was involved in a restitution claim surrounding a 16th century Swiss tapestry fragment that formed part of the Burrell Collection. Provenance research revealed that the artwork was originally owned by a German-born Jewish woman, but it had been forced into sale by the Nazis. It ended up in the English art market where it was purchased by Sir William Burrell in 1938. Ultimately, Glasgow agreed to compensate the original owner's heirs with a payment reflecting the current market value of the tapestry.

The UK Government's Department of Culture, Media and Sport's Spoliation Advisory Panel was established to help facilitate resolutions such as this. Over the years, it has administered the return of 23 cultural objects stolen or forced into sale by Nazis from public collections around the UK.

Greater certainty in Scotland on protection for ownership over time?

In a recent interview in the Journal of the Law Society of Scotland, reflecting on the contribution to Scots law of Professor George Gretton upon his retirement from the University of Edinburgh, Professor Gretton said that his "wish list for [law reform] action includes the Scottish Law Commission's... [report] on prescription and title to moveables: "This is something very important to the art world, museum world, galleries, collectors, auction houses. Our law is just a mess, and nothing has been done."

While the proposals in this area rejected a special rule for 'cultural objects' (partly due to the difficulties of a clear definition of such objects), as a general piece of law reform it would give clarity on ownership of items. Under the proposed rules, a person would gain ownership of property which had been in their possession for 20 years, dependent on certain conditions being met, in particular the person being in good faith and lacking negligence. This would continue to provide no protection for stolen goods. Perhaps interestingly in the context of works of art, the proposed rules would have effect where Scots law was the applicable law. If the item had been stolen or misappropriated in another country, Scots law would not apply and notwithstanding 20 years possession, title would not pass to the current holder – the law of that other country would govern the position.

Benefits of provenance research and dealings in well-documented art

The acceptance of provenance research as a legitimate aspect of managing art has afforded individuals, institutions, and entire nations the ability to reflect on and improve their collecting practices.

At the very basis, if you don't know where a work originated, or when it left the country or individual with most recent title to it, the object's authenticity and legality are in question. While not all poorly documented art is fake, stolen or looted, those that are fake, stolen, or looted will have no ownership trail or a falsified one. Thus, greater regard for provenance is a means of enhancing professional standards, ensuring the cautious and purposeful spending of funds, and fulfilling ethical obligations implicit to holding art in trust. It is also a mechanism to ensure that the domestic and international trade in cultural property is conducted with integrity, by redressing past injustices and fostering respect between communities.

This update was written by Brieanah Gouveia with additional material from Alan Eccles. Brieanah is an Art History MSc student at the University of Glasgow, specialising in antiquities trafficking and cultural patrimony law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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