Lessons from the Denney Collection : 10

The Defective but "Self-improving" Act of Donation to Toulouse

The Act, as we shall now see, has a title that is defective, but which is "self-improving" if the heirs fail to prove their title in the Spanish Courts.

The Act of Donation - which, according to the ICOM Code, is the instrument of conveyance "in which any conditions or limitations relating to an acquisition should be clearly described"(48) - was signed by Dominique Baudis the Mayor on 16 September 1993 (49). It declares the City to be proprietor as from that day, with full rights of ownership. (50) It then sets out the basis for the donor’s title. One might have expected this to include evidence of transfer of ownership from the estate of Anthony Denney but none is provided: a copy of the official Declaration of Inheritance, with its inventory, would have been appropriate. Instead of this evidence there is merely a justification: a reiteration of earlier arguments, concluding with a statement that English Law is applicable and that therefore "the universal disposition to the profit of Madame DENNEY has been able to produce its full and entire effect." Further on the donor declares:

she is acting in the fullness of her rights and capacity;
there exists no obstacle as far as she is concerned, either legal or contractual, to the free disposition of the goods presently donated.

This certainty about title and lack of obstacles is then contradicted with a clause saying that:

"according to the three documents of which photocopies are attached (in Castillian and in French), the children of the first marriage of Mr Denney have introduced a demand for justice relative to the succession of the latter before the judge of first instance of JEREZ DE LOS CABALLEROS, Province of Badajoz, Spain." The main points to note are that:

the City claims to have full title from the date of donation.
the donor claims to have full title, but produces no evidence for it.
the donor substitutes a mere assertion of title for a proof, based on her understanding of the will.
the donor says there are no restrictions on her passing title
the donor says that the assertion that she makes to have full title is being challenged in the Spanish Courts.

It appears that the title possessed by the City.

has the property of automatic "self improvement" with time and therefore can be treated as if it is a full title now
However, the Act of Donation, outwardly the proof transfer of full title, says within it something very different: that Toulouse does not have title to the pictures, unless and until the Denney children lose their claim to title in Spain.

What a curious kind of title it is and what a strange way of going about acquiring it!

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Section 9 - Index - Section 11

Section 10 : References

48 ICOM Code of Professional Ethics Section 3.1 Collecting Policies

49 Letter from the Mayor of Toulouse to A. F. Anderson dated 6 December 1993: "The City of Toulouse, in the person of its Mayor, took the decision to accept the Donation of Mme DENNEY in the full knowledge of the facts"

50 Act of Donation 16 September 1993. Note that the Act is described on its front cover as Donation - Study of Maître Michel DAGOT Notary, 6 Place Wilson Toulouse. It is prefaced with a list of those present before Maître Dagot. These are Mme Celia Denney, M. Alain Mousseigne appearing in his own capacity as conservateur at MOMAT and also as empowered to represent M. Gérard Thupinier, artist of NICE, M Dominique Baudis representing the City of Toulouse. M. Mousseigne and M Thupiner intervened at the request of Mme Denney as witnesses -

"recalling and declaring that the intention of Mr DENNEY had been to realise himself the present donation. That this intention is manifested in particular by a declaration made by Mr DENNEY in the presence of his wife and the two intervening witnesses here present, on the 27th March 1990 in PARIS. In the course of this declaration Mr DENNEY, in person, declared verbally to M. MOUSSEIGNE. in the presence of his wife, and of Mr THUPINIER, that he intended giving his collection of pictures to the Museum of Modern Art of Toulouse. That only the decease of Mr. DENNEY, which occurred shortly afterwards at his home on the 30th April 1990 had prevented him from realising and formalising this donation himself".

This is followed later with a declaration by M. Thupinier which says:

"On the 27 March 1990, the late Mr DENNEY made known to his wife, in the presence of Mr Mousseigne and the signatory his intention to make a gift of his collection of pictures to the City of Toulouse to be assigned to the Museum of Modern Art of Toulouse."

M. Thupinier is an artist living in Nice. Several of his works are in the collection of MOMAT and are listed under recent acquisitions [1987, 1988(gift of artist), 1991(bought from Stadler Gallery Paris)]. He held an exhibition at the Stadler Gallery Paris in 1984.

Section 9 - Index - Section 11

Paper presented for discussion at the Institute of Art and Law Seminar on Art Loans and Exhibitions, at the Courtauld Institute, London, May 13 1996

Version 2.2 May 23 1999 antonya@antonya.ace.co.uk

Lessons from the Denney Collection : 10

Section 9 - Index - Section 11

Section 9 - Index - Section 11

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