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139 Chapter 7 The laws The Birth of Cultural Heritage and the Impact of Preservation Laws on the Art Trade THE TEAcHInGS oF lEGAl HISToRY The legal factors are essential to understanding the dynamics of the art markets, even if their modes and their spheres of influence have not been carefully studied, with the exception of rare and circumscribed cases. In fact there are ample and varied cases of legislative provisions and legal resolutions that have had a notable impact on these commercial equilibria, sensitive to minimal variations and supersensitive to major ones. That occurred because of the “saprophagous and saprophilous” nature of the traffic, which has always been nurtured by decomposition, and fibrillated whenever difficulties, traumas, and accidents struck individuals , classes, institutions, and territories. Beside the basso continuo of ordinary transactions, in fact, the exchanges became effervescent and the demobilizations epoch-making when the “bodies” were boned and decomposed: whether that be social (the suppressions of the religious orders, the crisis of the aristocracy touched by the collapse of income from their land), political (the sacks, booty, and thievery of invading armies, from Rome to Mantua, and napoleon to Hitler),1 the contested dynastic changes, the confiscations from families banished or involved in real or presumed plots, the flights and exiles that followed coups, revolutions, and violent changes in the ruling classes2 or expropriations from religious minorities (as happened to the great Jewish art dealers and collectors during World War II), cultural (the growth of bourgeois business, the birth of large national museums, or the arrival of north American buyers), economic (the bankrupts and financial crises), demographic (deaths of collectors), etc. A more critical reader could object that in my reconstruction the conditions more favorable to the liberation, even if forced, of the works from their state of “captivity” in a collection and/or institution coincided, de facto, with an absence of norms or even—when these were present—with a suspension of the state of law and with patent violations of the norms ordinarily in force. This was true when the infractions occurred without extraordinary provisions having been adopted or promoted that authorized the abuse or legalized the misdeed, two rather common phenomena. In reality in my statement there is no trace of the evil eye but an invitation to reflect on the nature and meaning of these forms of possession. Individuals and institutions very rarely 140| Chapter 7 separated themselves spontaneously from the collections that they had built or had charge of, showing that they were not always susceptible to the song of the economic siren. When artworks entered into collections they were subtracted from the world and the commonness of its circulation, often losing their original function and value. They were deprived so they could speak, and with great eloquence, of their new owners: the loss or suspension of their original function and value testified to the plentiful resources of the owner and his enviable ability keep them unproductive. The excuse of “investment” covers up the constant desire to show the world their own possibilities to de-accumulate, to disperse the productive resource par excellence—money—in the collection of useless and unproductive goods, which are reduced to signs of that which, from the economic point of view, the heirs who are disposed to sell have always enjoyed. The law from this point of view is the system of rules that has regulated and regulates the playing of this exciting game. Even in less stormy times in fact, the legal debates and instruments conditioned the activity of intermediation and mobilization of single works and entire collections. First of all, considering the weight of post mortem dispersion, the dispositions that modified inheritances3 were determinant, whether they concerned the relative fiscal treatment (payment of inheritance taxes has often been a decisive stimulus) or they touched on the faculties of the heirs. In this regard, consider the limitations of a trust,4 or the rights of the majorat: when the power of alienation of land and buildings was limited and could force the heirs to recoup by ceding the furnishings and when instead the limits included these latter, smuggling and the increase of value of the works left on the market were indirectly favored. no less important were the rules regulating donations to individuals, museums, and philanthropic institutions and those that established conditions in cases of marriage, separation, divorce, adoption, and guardianship of minors. last were the provisions that regarded intermediary activities, with the increase, lowering, or annulment of...

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