Legally binding commitment to return cultural property
In the context of international loans, a “legally binding commitment to return cultural property”, known as “immunity from seizure” in English-speaking countries, is a tried-and-tested instrument for safeguarding the temporary transfer of cultural property to a different country by means of a legal guarantee that said property will be returned.
Legally binding commitments to return cultural property are the instrument of choice for creating legal certainty and have existed in Germany since 1998; it has therefore become customary to use them in the case of loans from countries outside Germany.
Scope of application
Pursuant to Section 73 of the German Act on the Protection of Cultural Property (Kulturgutschutzgesetz, KGSG), loaned cultural property is eligible for a commitment of this kind if it is:
“[…] lent temporarily for a public exhibition or other forms of public presentation [in Germany], including prior restoration for this purpose, or for research purposes to a scientific institution or an institution preserving cultural property […]”
Effect
A legally binding commitment to return cultural property means that, for the duration of the period during which the loaned cultural property is located in Germany, third-party proceedings for removal of the cultural property and related enforcement measures cannot be brought before the courts, and procedures for entry in a register of cultural property of national significance cannot be initiated. Until the cultural property is returned to the lender, and for a duration no longer than the term of the commitment that has been issued, legal actions for removal, attachment warrants, distraints and confiscations of the cultural property and official enforcement measures or seizures are thus inadmissible pursuant to the Act on the Protection of Cultural Property or other statutory provisions. By way of a guarantee under the legislation on administrative procedures, the Act specifies that a commitment of this kind cannot be cancelled, withdrawn or revoked, and that it shall be immediately enforceable for the period during which the cultural property is located within Germany.
Term
A commitment to return cultural property can be issued for a loan period of up to two years, and can also be extended after expiry of the full two-year term provided that certain conditions are met. In exceptional cases, an extension taking the total term up to four years may even be granted. The reason for imposing such strict time limits on this mechanism relates to the aforementioned extensive restrictions placed on third-party procedural rights to legal recourse.
Commitments to return cultural property are issued to lenders outside Germany, but must be applied for by the German institution that has concluded the loan agreement and wishes to exhibit the object.