Institute of Art and Law
Law and Ethics: An Introductory Course for Museum Professionals
21st – 22nd June 2018 Edinburgh
The National Galleries of Scotland were delighted to host this keenly anticipated two day IAL course – the first held in Scotland – and a great opportunity for collections management professionals unable to access the London-based IAL Diploma in Law and Collections Management. This intensive course aimed to cover the most essential topics of the Diploma, focussing on intellectual property and collections on day one, and on the law and ethics of museum acquisitions and contracts on day two.
Scotland has its own legal system based on a mix of civil and common law traditions, and for me one of the most interesting aspects of the course was that it pinpointed where there were differences. A full report on all the course content is available on the Resources > Top Tips pages of the UKRG website – www.ukregistrarsgroup.org/top-tips/#4733 – but here I am just highlighting the key differences, found most notably in Property Law but also in Contract law.
Differences in the effect of Scots Property Law were considered in relation to scenarios whereby items had entered the collection on deposit or on loan, but the lender could no longer be traced. Possession is an important feature of Scots Property Law, giving rise to a ‘strong presumption’ of ownership, with the onus being on the person claiming ownership to prove their title, compared to English law whereby a person claiming ownership would bring an action in the tort (wrong-doing) of conversion (treating someone else’s property as though you were the owner). It was interesting to consider whether in theory this might give rise to a practical difference, allowing Scottish institutions more freedom to use these types of works in their collections (for example lending, conserving etc).
A further difference, giving rise to the so-called ‘Scottish Conundrum’, is the operation of the Prescription and Limitation (Scotland) Act 1973. Under the Act, positive prescription (whereby a person can gain title following a defined period of ‘open possession’) only applies to heritable property, and in relation to moveable property it is only possible for a person to lose title under negative prescription, following a period of 20 years where ownership has not been exercised by possession, or for example, the existence of a loan agreement. This leads to a situation where title has been lost by the original owner, but not gained by the possessing party. This differs somewhat from the situation in England where it is understood that the original owner of property can lose title (and thus the possessor gains title) 6 years after the relevant act of conversion (which, in certain situations can be the first good faith purchase of the property).
This lack of absolute certainty of title leaves Scotland at a disadvantage, and in 2015 a consultation on a draft Prescription and Title to Moveable Property (Scotland) Bill was carried out. The intention of the Bill is to introduce positive prescription, with a 20 year time period for moveable property provided the owner has made no attempt to assert ownership and the possessor is in good faith and not acting negligently, with a 50 year period proposed for moveable property lent or deposited where the original owner is untraceable. Whilst being broadly welcomed by museums and galleries, a number of concerns were raised more widely regarding its operation in relation to issues of spoliation and restitution and its interaction with other areas of law, and a further review of comparative law in this area was thought advisable. A recent meeting with Scottish Government indicated that it is likely to return to the Scottish Law Commission for further research and development.
Although contract law in England and Scotland has developed in a broadly similar trajectory, with shared authorities, there were some key differences to note. In Scots law, consideration is not required for a contract to exist, and a gratuitous promise can be enforced. There were also a number of pieces of Scottish legislation to be aware of:
- The Requirements of Writing (Scotland) Act 1995 specifies which contracts must be in writing to be valid, and how a document can be made probative if it has been witnessed.
- Third Party Rights (Scotland) Act 2017 which came into force 28th February 2018. This Act makes provision for the creation and enforcement of contractual rights in favour of third parties, replacing the common-law rule known as jus quaesitum tertio.
- The recent Scottish Law Commission proposals for reforms in the area of contract formation.
Written by Rosalyn Clancey, National Galleries Scotland