The Gift and the Deed

Abstract

FEW ARCHIVISTS BELIEVE that it is better to give than to receive. Archivists customarily depend upon gifts to increase the holdings of their institutions. These gifts may be eagerly sought or entirely unsolicited, but all of them involve the transfer of certain property. In legal terms, a gift means that title to the property passes from the giver to the recipient, i.e., from the donor to the archives. The common legal characteristics of a gift are a clear offer, acceptance, and delivery. As most people know, when one buys a house a title search is made to insure that there are no claimants to the property other than the seller and that there are no outstanding restrictions on the use of the property other than those agreed to by the buyer. In other words, the seller must give to the buyer a clear title to the house. Many of the same considerations are important in the transfer of archival materials from a donor to an archives. A receiving institution must make sure that the title is clear and that the prospective donor is competent. Take as an example a case in which an heir offered to donate some papers but investigation by the archives revealed that he was not the sole heir. The other heirs were not agreeable to the donation, and the negotiations therefore foundered because the prospective donor did not have the capacity to convey a clear title. In another case, a very elderly woman signed a deed, but after her death the heirs claimed that she had not been competent at the time of signing; thus the deed was void. This does not mean that the archivist must hire a private detective to investigate prospective donors; but it does mean that some tactful questions should be asked early in the negotiating process. All transfers of personal property to an archives should be documented in a clear, unambiguous fashion. As archival materials have both a physical and an intellectual component (i.e., a medium and a message), it is impor-

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