By Cesar Augusto Taborda Lima
Buying a work of art means buying its history, and the risks that come with it. The 1970 UNESCO Convention speaks to States: it requires them to treat as illicit any transaction that breaches the rules they have adopted to protect their heritage. For a collector, the more demanding rule sits in the 1995 UNIDROIT Convention, in force in Brazil: whoever holds a stolen cultural object must return it, and is compensated only on proof of due diligence at the time of purchase. Checking provenance, and documenting it before paying, can make the difference between a total loss and a compensated one.
The import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit.
1970 UNESCO Convention, art. 3 (official text).
What the 1970 Convention does
Article 3 works by reference. It makes illicit whatever breaches the provisions each State Party adopts under the Convention, such as the export certificate required by Article 6. Even the definition of cultural property turns on what each State has specifically designated (Article 1). Whether a piece left its country of origin lawfully thus depends on that country’s law.
Under Article 7(b)(ii), at the request of the State of origin made through diplomatic channels, the State where the object is found must take appropriate steps to recover and return property stolen from a museum, a public monument or a similar institution and documented in its inventory. The requesting State pays just compensation to an innocent purchaser or to a person with valid title.
The Convention, in force for Brazil since May 1973, is not retroactive. Its 2015 Operational Guidelines confirm that recovery under Article 7 covers only property imported after entry into force for both States concerned, without legitimising earlier illicit transactions or limiting other remedies. Its obligations are also addressed to States: a private owner recovers a stolen work through the actions national law provides, which Article 13(c) requires States Parties to admit.
The 1995 UNIDROIT Convention and the burden of diligence
The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects has been in force for Brazil since 1 September 1999 (Decree 3,166/1999) and reaches claims between private parties. Article 3(1) is blunt: “The possessor of a cultural object which has been stolen shall return it.”
Compensation is due only if the possessor “neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object” (Article 4(1)). Article 4(4) looks at all the circumstances, including the character of the parties, the price paid, whether reasonably accessible registers of stolen objects and accessible agencies were consulted, and other relevant documentation.
Families who inherit collections should note Article 4(5): an heir or donee is in no better position than the person from whom the object came. For illegally exported objects, a missing export certificate expressly counts in deciding whether the possessor should have known (Article 6(2)). Like the 1970 text, this Convention does not reach back in time (Article 10).
Brazilian rules a buyer will meet
Some works may not leave Brazil. Law 4,845/1965 bars the export of works of art and traditional crafts produced in Brazil up to the end of the monarchy in 1889, save for exceptional, authorised temporary exits for exhibitions. Law 5,471/1968 does the same for libraries and collections of Brazilian works, or works about Brazil, published between the sixteenth and nineteenth centuries, even when sold singly. Decree-Law 25/1937, on listed heritage (tombamento), lets a listed object leave only briefly, without transfer of ownership and for cultural exchange (Article 14). On export, IPHAN, Brazil’s National Institute of Historic and Artistic Heritage, states on request whether any restriction applies, through an online query on the gov.br portal or a cultural goods exit declaration.
Dealers in art and antiques are subject to Brazil’s anti-money-laundering statute, Law 9,613/1998 (Article 9, sole paragraph, item XI). Under IPHAN Ordinance 396/2016, they must register with CNART, IPHAN’s national register of art and antiques dealers, identify clients and record transactions of BRL 10,000 or more, and file reports with COAF, Brazil’s financial intelligence unit. A dealer who asks none of this is a warning sign.
Checking provenance before you buy
Due diligence is proved with paper. Before paying, gather:
- the chain of ownership, with names, dates and how each transfer took place;
- invoices, receipts and earlier contracts;
- the exhibition and literature history;
- inclusion in the artist’s catalogue raisonné, or the view of the artist’s foundation;
- export and import documents;
- dated results of searches in the INTERPOL Stolen Works of Art database, also available through the free ID-Art app, and in IPHAN’s register of wanted cultural property (Banco de Bens Culturais Procurados), also free.
The Art Loss Register keeps a private database, searchable for a fee. INTERPOL states that searches saved in ID-Art are time-stamped and may serve as proof of due diligence.
Take extra care with European works showing ownership gaps between 1933 and 1945, the period the 2024 Best Practices for the Washington Conference Principles associate with Nazi confiscation and forced sales; with a price well below market, which Brazil’s Penal Code counts among the circumstances from which criminal origin should be presumed (Article 180, paragraph 3); with unusual pressure to close; and with archaeological or ethnographic objects lacking export papers.
Contract terms that protect the buyer
Brazil’s Civil Code makes the seller liable if the buyer loses the work to a third party with a better right (evicção, Article 447) and allows the parties to reinforce that warranty (Article 448). The contract should add representations that the seller owns the work, that it is not registered as stolen, that it left its country of origin lawfully and that no claim is known. The duty of good faith (Article 422) supports requiring the seller to disclose what it knows. If a representation proves false, the buyer should be able to terminate and recover the price, adjusted for inflation, and expenses. Conversely, a buyer who knew the work belonged to someone else, or was in dispute, cannot claim under the warranty (Article 457).
Holding the price in escrow until the checks are done and export documents delivered is prudent. In cross-border sales, governing law and forum, or arbitration, should be chosen in writing; none of these choices removes an export ban.
As I see it, the provenance file should be treated as part of the work itself. It protects the price paid, eases resale and spares heirs a dispute that, decades later, no one may be left to explain.