Can the Tate save its Bacon?

In 2004 Barry Joule, a long-time friend of the late Irish painter Francis Bacon, donated to the Tate a collection of sketches, photographs and documents from Bacon’s studio with an estimated total value of £20m. Joule has recently voiced allegations that the Tate has failed to abide by the conditions placed on this gift, namely that the collection should be the subject of a dedicated exhibition there. While some items have been exhibited by the Tate and are accessible by the public in its archive, none of the Joule donation featured in the Tate’s major Bacon exhibition in 2008. 17 years after the gift was made, Joule has cautioned that unless the dispute is resolved by October 2021, he will seek the return of the entire donation.

This situation raises important questions about the legal nature of a gift and the enforceability of conditions attached to it. It appears that Joule is proposing to recover the collection on the basis of breach of contract by the Tate. Notwithstanding potential problems with the statutory limitation period for a breach of contract claim, an outright gift is not generally revocable under English law and so the specific nature of the agreement reached in 2004 will be paramount. While the Tate will be mindful of reputational problems arising from disputes with significant donors, it will also be constrained by restrictions against deaccessioning. Joule and the Tate are meeting this month to discuss the position and it remains to be seen what a resolution to the dispute might look like.

The broader lesson here is the importance of opening a dialogue with the proposed recipient of a gift of artworks, to ensure ahead of time that any conditions imposed by the donor are feasible and realistic. For example, an institution may require a gift of funds together with the artworks in order to achieve the donor’s wishes for research, preservation, publication and display; or the subject of the proposed gift might not fall within its curatorial remit. Questions regarding artworks’ provenance or authenticity should also be addressed before a gift is made. In this case, one scholar has raised doubts over whether all items in the Joule donation are by Bacon himself; Joule considers this allegation to have first arisen as a response to his refusal to donate the collection to the Bacon Study Centre at Hugh Lane Gallery in Dublin. Unlike the Tate, the Musée Picasso held a major exhibition of Bacon’s artworks donated by Joule shortly after receiving them; perhaps had Joule been aware of the institutions’ differing approaches before making the donations, he would have allocated the items differently.

Joule has also indicated that he will not go ahead with a planned testamentary bequest to the Tate of ten oil paintings, including a significant self-portrait by Bacon from 1936. An individual remains free to alter or revoke their Will throughout their lifetime (subject to meeting the requirements for mental capacity). As with lifetime gifts, gifts of artworks included in a Will should ideally be discussed with the proposed recipient beforehand. A testator who is advised that an institution would not be willing or able to fulfil conditions attached to the gift would then have the opportunity to identify a different beneficiary. If a testator’s estate planning factors in the exemption from inheritance tax for gifts to charity (and public cultural institutions are generally registered charities), the Cultural Gifts Scheme (for lifetime gifts only), or the Acceptance in Lieu of inheritance tax scheme, it is especially important to confirm that a qualifying institution will be willing to accept the donation.