Due Diligence in Art Law and Cultural Heritage Law

Resumo

The article examines the meaning and scope of ‘due diligence’ within the spheres of Art Law and Cultural Heritage Law, especially concerning authenticity and clean provenance, to determine what can legitimately be expected from the parties involved and thus avoid legal uncertainty vis-à-vis the burden of proof, and the suitability of indemnity and restitution claims. Regarding methodology, comparative methods are used to examine the legal institutes in different legal systems, induction and deduction to identify the legal sources, and the examination of case studies. The first part considers how the agreed quality of an artwork is established, particularly regarding the roles of those involved, and their responsibilities concerning due diligence in cases involving disputed authenticity, as well as the distribution of the burden of proof. Cases are analysed in which artworks or cultural goods are compromised due to the absence of clean provenance. The second part aims to systematize the due diligence requirements and expose the fundamental divergence between Common Law and Civil Law regarding the protection of the good faith possessor. An alternative solution to the costly scientific tests used as evidence to rescind sales agreements involving pieces with contested authenticity is proposed, as is the adoption of convergent understanding between the legal systems in cases of questionable provenance. The research is relevant because it impacts the formulation of public policy for the protection of cultural property and the art trade in general, while offering criteria for understanding the duties inherent to due diligence.