The legal issues of cultural heritage in Malta
Michelangelo Merisi da Caravaggio "The Beheading of St John the Baptist"
Despite the global recession, auction houses around the world keep registering record bids. And despite the fact that the local auction market is small and somewhat restricted, collectors are nonetheless busy at every local auction in search for the right item at the right price.
The surge in local interest was not unaccompanied by relevant legislation. The Auctioneers Act is one such example; it serves to regulate the position of the licenced auctioneer. Among other responsibilities, the auctioneer is obliged to represent a correct description of the antique or item. He cannot, therefore, rely entirely on the owner’s description. Neither can he exempt himself - on the basis that he is acting in the role of mandatory - from responsibility should it transpire, for instance, that the object was wrongly attributed to the master instead of the pupil or that the zecchino was minted in a later period.
The law grants the right to the dissatisfied buyer, on discovering that the item is not according to the description as provided by the auctioneer, to demand a full refund of the price paid, including any commission rights. The request by the buyer must be made within one month from the last day of the auction. An action to enforce his rights, following an unsuccessful request, must be made within three months of the request.
This is without prejudice to other forms of civil action which remain available to the aggrieved buyer. However, it is the most convenient recourse, especially in view of the fact that the auctioneer is not bound to reveal the identity or details of the seller.
Meanwhile, any purchase made at an auction, the subject of which is an object of cultural property, can be acquired by the State at the same consideration that was established between the buyer and seller.* The Superintendent of Cultural Heritage may exercise this right of precedence within two months from the date that the parties shall have issued a receipt of notice or from the date that such sale, lease, exchange or transfer is made known to the Superintendent.
The State has an ongoing interest in objects of cultural property. Any cultural property being exported, or re-exported, requires the written permission of the Superintendent. Again, the State is given the opportunity under Chapter 445 to acquire the object proposed to be exported.
The Superintendent may, after consultation, require that the possessor or owner of cultural property repair or restore the same and shall fix a time limit in which such repair or restoration shall be effected. If such is not undertaken, the Superintendent, may commence the said works at the expense of the possessor or owner.
Finally, the State claims for itself any moveables forming part of the cultural heritage discovered within Maltese borders regardless of the manner in which they were found. Therefore, it is of paramount importance that buyers should be satisfactorily informed beforehand of the provenance of the object.
* Cultural property includes both moveable and immovable property forming part of the cultural heritage.
Article written on the 24th February 2012 by Ralph Aguis Fernandez
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