by Giuseppe Calabi*
Paintings, vintage cars, silverware, scientific tools and musical instruments, antique books: the frontiers of collecting are endless. However, collections are subject to a number of risks, especially when their creator dies. This is also due to the physiological nature of inheritance, which lies in the possible division of the inheritance among several parties. Are there ways for the collectors to prevent the dispersal of their collections? What are the pros and cons of the available solutions? What is the starting point for an informed assessment of the best solution? These are the themes of the brief survey that follows, which focuses on the necessary balance between the collectors’ desire for conservation and the efficient management of their assets.
The collector’s due diligence
Before considering how to manage the collection, it is important for the collector to look at what it includes: as I often repeat, the essential factor for anyone interested in art is due diligence, which corresponds to the in-depth study of the assets that make up their collection. Normally, this study, which involves various disciplines, including art history, conservation and restoration science, an examination of the purchase title and the provenance of the asset, should precede the purchase of the asset by the collector. Failing that, it should be carried out at the time when the collector decides what fate will befall their collection. Therefore, the prudent collector will first make an inventory of their works, verifying the existence of accompanying documentation, their provenance, the existence of certificates of authenticity, updating their bibliography and exhibition history, and assessing their state of preservation. This long and complex activity is essential to fully understand the extent and consistency of the collection and, if necessary, of the risks that may affect the individual works in the collection. In fact, it is possible that some works of art have been acquired – or, perhaps, have come to the collector by inheritance – in an unclear manner: think, for example, of works of art acquired during wartime or post-war periods, or, more banally, of those that are not accompanied by documentation regarding their provenance or authenticity. In such cases, the owner of the collection or their heirs could face claims from self-styled previous owners, disputes about the authenticity of the work or even from the State about whether the work belongs to public collections (e.g. in the case of ancient works, archaeological finds or ecclesiastical assets). Careful due diligence allows the collector to examine the risks relating to individual works and, where possible, to remedy them before making overall valuations.
Ways of preserving the unitary collection: pros and cons
Once the contents of the collection have been examined, the owner can decide what to do with it: for example, whether to divide it into lots by means of a will, to give it to a foundation or to place it in a trust. The owner can also donate the collection during their lifetime to a private or public entity, possibly with an obligation not to divide the collection. Or they can apply to the Ministry of Culture to have the collection declared of exceptional cultural importance. The declaration of interest (the so-called “constraint”) is provided for in Legislative Decree 42/2004 and is the way in which the State recognises the cultural importance of a privately owned asset (or collection). The law provides that for a collection to be declared important, it must be exceptionally valuable, whereas for individual items the law only provides for special importance.
What are the implications of declaring a collection to be of exceptional interest?
If the collector’s wish is to preserve the collection as a unicum, it can be fulfilled by the declaration of interest of the collection, which becomes inseparable. However, the binding element must be carefully assessed. First of all, it must be considered that the Ministry is not obliged to declare a collection of cultural interest if it does not meet the requirements: the declaration does not automatically follow from the owner’s request. In addition, the constraint has a series of important consequences from the point of view of the management of the cultural asset (both individual assets and collections): in fact, they cannot be permanently exported from the Italian territory (not even if the owner moves to live abroad) and they cannot be moved within the Italian territory, lent for exhibitions or restored without ministerial authorisation. The State also has powers of surveillance and inspection of the assets and their condition and can exercise these powers also through access to the place where they are located. In addition, the constraint of the collection means that it is “frozen” in the state in which it is found at the time of the declaration of interest: therefore, if the owner wished, let’s say, to sell one of the items in the collection in order to purchase another, perhaps of greater importance or relevance, they could not do so. In the case of transfer of ownership, whether free of charge or against payment, the State has the right to control the transfer and, in the case of transfer against payment (e.g. in the case of a sale), it has a right of pre-emption, which implies that the State can take over from the purchaser under the same conditions and buy the object in their place. Therefore, the declaration of cultural interest places a constraint on the collection not only for third parties but also, and above all, for the collector, who must assess the advisability of initiating the declaration procedure, mainly in their own interest and that of their assignees, since it is a procedure that, once initiated, is practically impossible to stop. A private alternative to this public solution is the transfer of the collection to a foundation or trust. While in the first case there are practical implications (the assets of the foundations are considered cultural assets in law if the legal requirements are met) and bureaucratic ones (the foundations are subject to the control of the state or the regions, depending on whether they are foundations recognised at national or regional level), the trust is an instrument of separate management of the assets that can calibrate its management according to the needs and wishes of the settlor while maintaining the unity of the collection. This last hypothesis is the most economically costly, but at the same time it can be a win-win situation. Obviously, there is no single formula that can fit every specific case: once the owner has identified their main interest in the management of the collection, they should check the available alternatives and identify the one that best suits their needs.
* Partner – CBM&Partners