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Delia Titzell is a museum collections management professional based in Washington, D.C. A lifelong Washingtonian, she earned her Masters degree in Museum Studies from the George Washington University and is one of the 2019 recipients of the school's Marie C. Malaro Award for Excellence in Writing. Her experience includes collections care, digitization and incoming and outgoing loans. Her other written work includes subjects such as museums innovating to protect collections from environmental extremes brought on by climate change and the challenge of when the terms of a restricted gift conflict with accessibility.

For many collections specialists working within museum registration, there’s a two-word phrase that we dread when working with old loans – “indefinite period.” 

You may see it written in a letter or loan agreement as: “These objects are certain specimens which are being lent by your company to our museum for an indefinite period."

Indefinite loans can be some of the most frustrating and costly problems in any collection. Property going unclaimed by the true owner can take up space and consume care and staff resources from your museum, while your institution can make no claim of ownership. 

Efforts to resolve these loans are dictated by time, money, the allocation of resources, laws of the state that said institution resides in, and eagle-eyed attention to the original terms of the agreement. 

Luckily, indefinite loans have fallen out of fashion as museum practices have become increasingly governed by standardized best practices. But if you have indefinite loans in your collection, hopefully these stories from fellow collections managers provide helpful insight and guidance.

 

What is an indefinite loan?

In A Legal Primer On Managing Museum Collections, Marie Malaro and Ildiko DeAngelis distinguished an indefinite loan from an expired loan in terms of the legal relationship known as bailment. 

When an end date is agreed upon for a loaned object and the loan expires, it can be argued that the bailment relationship has changed. While the “bailee” (the borrower) is obliged to care for the object per the standards laid out in the contractual agreement during the period of the loan, the end of the loan changes the obligation. “A new form of bailment then exists,” writes Malaro and DeAngelis, “one essentially for the benefit of the bailor, and the bailee is usually held to a lesser standard of care.”* This in turn can be used both to relieve a borrowing institution from a degree of constraint, and perhaps even to incentivize a lender to revise or resolve an out-of-date loan as soon as possible. 

But a loan without a clearly stated end date is another matter, and this is what we mean by an indefinite loan. A Legal Primer describes that in these cases an institution will find it “hard, if not impossible to prove that a new form of bailment has come into existence. So, with indefinite loans, the museum is left with providing a higher standard of care and little hope of ever recouping the costs of that care even if the lender were to reappear.” 

And so, because of the dubious terms of the loan period, an institution can have a difficult time arguing that the terms and conditions of the loan are no longer enforceable, even if many years have gone by and contact cannot be established with the lender. This puts the borrower in the unenviable position of caring long term for an object that they do not legally own, may no longer want and cannot easily disentangle from.

 

Even practical solutions prove impossible with indefinite loans

I have experienced an indefinite loan. A major corporation loaned a huge and heavy industrial prototype to the institution where I worked. Unfortunately the company went bankrupt and our institution was unable to secure any instructions for the disposition of the object, which has come back to haunt us in the time since. 

Recently, another museum came forward to make a case for being the successors to the original lenders of record of the object. In many ways, it feels like a logical and tidy resolution to accept the museum’s claim unreservedly. 

In its present state no ownership can be exercised over the prototype. Our museum ethically cannot loan this object out to other institutions, deaccession it, or use its image in any promotional materials. 

Why? Because even after all this time and with the lender defunct, due to the terms of agreement which stated the loan was for an indefinite period, the loan technically remains in place. 

If this other museum could take full legal ownership of the prototype, at least this object would be freed from limbo. The other museum had a relationship to the company’s history, which made for a compelling link. They also put forward documentation to make their case–hoping to demonstrate that the company intended as part of their liquefaction for certain assets to become part of the other museum’s collection. 

But after consulting with counsel, it became clear that there was nothing explicit enough for us to be able to infer that the prototype is included in these instructions.

What can be done about this situation? Perhaps one day a “smoking gun” will emerge, some piece of documentation showing exactly where and to whom the prototype was to be dispensed in the event of the company’s end. But until then, there’s a very good chance it will remain as it has for the past five decades. 

It may seem absurd, unfair even, when practical solutions seem so close at hand. But what if we transferred this object into the museum’s custody and five years from now, another party came forward claiming to be the rightful owner of the prototype? What if they in fact produced stronger evidence for their claim? Who would be liable for giving their property to another? 

Or what if instead of transferring the object, it was destroyed because it went unclaimed for such a long time, and then a supported claimant came forward? 

However remote these possibilities may seem, these are the risks that turn indefinite loans into draining, dubious “permanent” loans. 

 

A NAGPRA review turns into a search for a lender

“Laura,” a staff member at a state historical society, shared a story from reviewing objects on display in compliance with the new NAGPRA regulations. One of the reviewed objects was a tribal headdress loaned to the institution by a family in the early part of the 20th century.

“While I knew it was on loan, I found out that earlier curators had given it an accession number and we had no loan paperwork from 1915-present. We know it's something that the tribe wants repatriated, but we don't own it, so it's not subject to NAGPRA. I essentially have to go through a full abandoned loan process just to return it to the family of the person who loaned it. We do have an email from a descendent who visited once a number of years ago, but we don't know if they are the legal heir and/or the only legal heir. They will have to produce documentation for 100 years of probate.”

In order to have even a slim chance of resolving this loan, Laura’s institution will have to pursue avenues with no certain outcomes, devoting time and resources to seeking out individuals who may not be involved in the ownership claim, or who may not have the necessary means to prove their claim.

If the headdress is returned to the legal owner and the loan resolved, it may not ultimately be repatriated to the tribe. The decision would be with the legal heir, and as a private citizen they will be under no compunction to return this object.

 

Discovering a surprise loan in the collection

“Lynne” was collections manager at a museum that's been around since 1965. She was responsible for the museum’s collections files and loan files, and carefully maintained all incoming loans in two-year renewal increments to ensure that they stayed up-to-date. 

“One day, I got a message from someone asking for their item back. This artifact had been at the museum since it opened, or the late 1960s, at any rate. The object file was in the collection files, not the loan files…and it had an accession number, so I thought it was ours. After all, it had been almost 50 years by this point, and I had never looked closely at that object's paperwork (we had over 80,000 items, so I didn't do a deep dive on everything). It turned out that it had been a loan all this time.”

Lynne later discovered that several collections objects that were previously believed to have been part of the collection were in fact loans that had never been entered as such. As for the artifact in question, Lynne’s museum ended up having to return it, an object that in her words, “was an integral part of one of our exhibits for decades.”

You can log inbound and outbound loans in Artwork Archive along with key details and documentation. This way museum staff have access to critical information for years to come. 

 

When the perfect object is another’s treasured history

“Linda” shared a story about the long-term loan of an artifact related to a local Freemasonry Group in Missouri, which had gone defunct. The objects had been loaned to the museum decades before in the 1930s. And this object was in particularly good condition and well-suited to their interpretive needs–just the thing to help tell a part of their story of Missouri’s history.

"Because we wanted to display it in an exhibit, we figured that we needed to assert title to it. We spent money on sending certified letters to addresses that were no good. We spent money on newspaper ads (through our state's Museum Property Act). A Freemason group (at the state level) came forward and said they were the appropriate heir and wanted it back. They provided paperwork, for which we needed legal advice to review (more cost).” 

Much like Lynne in the earlier example, Linda’s institution ended up not only returning the object to the group as the rightful owners, but this turned out to be one of “hundreds” of long-term loans from the period in the museum. 

Lynne shared: “Not only had we spent staff time and institutional resources caring for the item for decades but we had spent additional staff time and institutional resources just so we could give it up.”

 

Your museum can avoid these indefinite loan challenges 

Fortunately, these indefinite loan situations can easily be avoided by applying certain standards as a matter of procedure to every incoming loan. 

First and foremost, specify the date ranges of the loan within the agreement. You can log these dates in your Artwork Archive schedule so that they are not forgotten. And, your loan agreement can easily be uploaded with the artworks to ensure everyone has key information at hand.

Unfortunately not all owners retrieve their property at the termination of the loan. But that is why it is essential to check in with the lender at regular intervals, and to require lenders or their representatives to inform the museum of a change of ownership as soon as possible. 

Thus, it’s better to agree to a shorter loan period and to renew the loan at regular intervals than to agree to one long, continuous loan period. 

Some museums opt to include in their loan agreements language outlining next steps if the lender does not claim their property after the loan termination date. One possibility is to include a provision that if the lender does not claim their property after a certain amount of time, the Museum will then consider the object an unrestricted gift and it will become such (refer to A Legal Primer On Managing Museum Collections Chapter VI: Loans, Incoming and Outgoing, Section 9: Return Provisions, for descriptions of the details and cautions of such a clause).

Sometimes the terms and conditions of the original agreement can spare us if we examine them closely. “Erin” shares a positive story:

“I worked at an organization founded in the 1940s with many long-term loans they took in when the museum was getting going. We all assumed that it was going to be a nasty business to resolve them. One day, reviewing documentation for one of the items, I noticed a lender had crossed out one of the phrases in one of the terms. Turns out that phrase was essentially "when I die, I transfer this property to the museum." That individual lender didn't want their property transferred to the museum upon their death. Fine. What that did mean for us though, was that every other lender that 1) was dead and 2) did not cross out that condition, had already transferred title to us upon their death so all we needed to do was put it through the collections committee and decide to accept or decline the item for the collection. Phew! Lesson: read the entire original loan agreement!”

To museum professionals reading with indefinite loans in your care that have lenders that may be alive or active, I encourage you in the strongest of terms to make contacting them and returning or reimagining your agreement a priority. The work you do now to bring your loan into good standing could save your institution years of grief and money, and possibly even a trip to court to plead your unclaimed property case, which could be spent so well somewhere else.

*Malaro, Marie C, and Ildiko DeAngelis. “Chapter VII. Unclaimed Loans, Section A. The Problem.” A Legal Primer on Managing Museum Collections, 3rd ed., Smithsonian Books, 2012.

The author shares her deepest thanks to Lynne Phillips, Linda E., Laura and Erin Richardson for generously sharing their stories and wisdom for this article.

Learn how you can track your loans with Artwork Archive in this educational webinar.