18 February 2016

About due diligence

by Marc Masurovsky

An art object cannot exist unless someone has created it. That is a self-evident truth. Once the object becomes the subject of a commercial transaction, an exchange, a transfer, a gift, its ownership shifts from the creator to someone else. Its essence, however, does not change over time. It is timeless. We leave it to critics, curators and art historians to haggle over its meanings.

After the object changes hands and moves from one owner to the next, the ownership of the object can be either licit or illicit, it cannot be both or neither. That should be as plain as day.

The provenance of the object is (in theory) the public face of the transactions (licit or not) which occur along the itinerary, however brief or long, of the object. The ownership history of the object can also be viewed as a source of evidence as to who owned, possessed, or held the object when, where, and sometimes, how. This might explain why provenance information generally tends towards the elliptical or extreme minimalism to such an extent that you can justifiably argue that the provenance is a work of fiction. History as fiction. Historical revisionism disguised as art market opacity?

Any attempt to hide, modify, or otherwise obscure the ownership trail of an object should be considered as aiding and abetting in the commission of a crime, which can include theft and misappropriation in contexts ranging from simple burglaries, fraudulent property transfers to confiscations and seizures resulting from racial and religious persecutions and/or genocide that have been routinely denounced and condemned by the community of nations.

Potential buyers, sellers, donors or recipients of cultural objects should make sure that the provenance of the object does not hide an unsavory past which could threaten good title to the object under discussion. This involves exercising one’s due diligence. The big question is: how much due diligence is acceptable?

The answer to that question varies from place to place and can be truly disarming. From checking databases to making several phone calls (much like calling references submitted by an applicant) and checking a catalogue raisonné, people exercise “due diligence” in the darndest ways. A reasoned approach, however, might compel a potential buyer or recipient of a gift to demur and reject the object because the provenance simply is too skimpy for words (elliptical/minimalist/or absent) or there are too many unanswered questions that, in due course, would come back to haunt the new owner of the object. More often than not, those who apply such circumspection and reasoned judgment when faced with the prospect of owning a beautiful and rapturous object are few and far between, although anecdotal evidence indicates a recent uptick in ethical behavior amongst art market players and professionals working in cultural institutions. Let’s hope this trend continues.

Invariably, the flawed provenance is justified by the imperfections of Time and the vagaries of History. Those who “drank the kool-ade” express their utter delight at the prospect of embellishing their collection with such a fine new acquisition, regardless of how tainted its history is.

Let the chips fall where they may.