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