WAACNewsletter
January 1998 Volume 20 Number 1


Contracts: Who's in Charge Here?

by Virginia N. Naudé

Introduction

This paper is an introduction to conservation contracting. It is intended to assist conservators starting new businesses as well as conservators already established in private practice.

One definition of a contract is: "An agreement that the courts will recognize and enforce". I am not qualified to advise you how to write such an agreement. You will need to consult a lawyer. In preparation for talking to your lawyer, this paper may assist you in recognizing some issues you will want to address in your contract. They may not all apply to you, and there may be additional issues not covered here that are important for your business contract. The content of this paper is limited to observations various colleagues and I have made over many years. This paper is specifically not intended to provide words for writing your own contract without legal counsel.

From a practical point of view, the contents of a good contract will clarify all the understandings between client and conservator so that no misunderstandings arise during the course of the work. It is important to spell out the intent of the parties. If you generate the contract form you control the content and your lawyer controls the language which will enable him to defend you in court. The contract document provides you with an excellent tool to keep you out of court. The process you go through to prepare a contract form will educate and inform you about matters the proprietor of a business needs to know.

The reason I titled this paper "Contracts: Who's In Charge Here?" is that using your own content and language, rather than the client's, puts you in charge, and this makes excellent business sense. When you and your lawyer have completed your contract, you will be in a position to take charge of the conservator/client relationship as prudently as possible. It is necessary to spend considerable time and some money on producing a contract that will serve you well. Once this is done you can move on to the aspects of your business that probably interest you a lot more.

Most of us wrote our first contracts by cutting and pasting together parts of other conservators' contracts. What I offer you in this paper is essentially a lot of cutting and pasting. It is appropriate that an introduction to conservation contracting provides a review of what other conservators have done in the past. I have asked permission to use other people's language when I knew the source of the contract, but I have accumulated lots of fragments and second and third generation documents over the years. If there is language included here that anyone considers proprietary to themselves and for which I did not ask permission, I apologize for the unintentional omission of proper credit.

Kinds of information usually/frequently found on conservation contracts

  1. Statement of Name and Place of Business
  2. Identification of Art Object, Ownership, and Value
  3. Nature of Services Requested
  4. Limitations of Expertise of the Conservator
  5. Services to be Performed
  6. Risks
  7. Performance Criteria
  8. Procedures for Modifying Agreement
  9. Provisions for Stopping Work
  10. Situs for Performance of Work
  11. Transportation and Shipping
  12. Time Table
  13. Cost Estimates and Terms of Payment
  14. Provisions for Claiming Work
  15. Documentation to be Provided and Proprietary Rights Thereto
  16. Clients' use of Conservators' Documentation
  17. Liability and Negligence
  18. War and Acts of God
  19. Insurance
  20. Statement of Entire Agreement
  21. Statement of Binding Agreement
  22. Law Under Which Agreement is Binding
  23. Signatures, Identification of Signers, and Dates

1. Statement of Name and Place of Business

Your name, address and telephone number should be printed at the head of your contract. The name you give is that under which you are legally trading (i.e., doing business). If you are a sole proprietor you may be simply trading under your own name. You may be trading under the name of an unincorporated business. If you are incorporated it is important to assure that Inc., Ltd., or Co. is clearly visible as part of the name. The following are various names under which one conservator might trade:

If you are incorporated your contract language should not refer to "the conservator" but rather to the company's name which is usually abbreviated after it is first mentioned, for example: Gothic Conservation Enterprises, Ltd.

2. Identification of Object, Ownership, and Value

Some of the standard categories of information found on most conservators' contracts are:

Lab Job Artist
Owner Subject
Authorized Agent (if the client is not the owner) Collection
  Date
Address Dimensions
Telephone Accessories
(home and work) (frame, base)
Type of object Declared Value

 

You want to assure yourself that the person who signs your contract is the owner of the object or has the authority to act in the owner's behalf. A sentence such as the following is frequently found in the section of the contract where the owner is named or found in the section provided for signatures.

The undersigned represents that he is the owner of the work of art or the duly authorized agent of the owner (evidence of which shall be provided to the conservator on request).

3. Nature of Services Requested

Examination Technical analysis
Treatment Photography
Treatment proposal Framing
Collections Survey Transportation
Consultation etc.

 

4. Limitation of Expertise of the Conservator

Some conservators include a statement such as the following in their contracts whereas others omit it or include it on a separate sheet that sets forth the policy under which the business operates.

Facts produced by technical examination may have a bearing on the authorship, date or provenance of an art object, but the conservator cannot and does not give opinions or issue statements on questions of style, authorship or monetary value of an art object.

5. Services to be Performed

This section of the contract should make clear your and the client's agreement about 1) the condition of the object 2) the goals of treatment and 3) the treatment proposed. The amount of detail that goes on the contract document itself depends on the nature of the object, the nature of treatment and the client's familiarity with conservation principles and practices.

This section of the contract is critical. If a misunderstanding arises in the conservator/client relationship it is likely to be about material in this section. This is the place to make sure that parties to the agreement have a similar intent.

Unless your studio works on objects of a relatively similar nature, or you work for only a few good clients, you may find yourself deciding on a case by case basis how specific you want the information in this section of the contract to be. Clearly you want to provide as much information as is called for to fulfill your adherence to the AIC Code of Ethics and Standards of Practice, but not so much information that you are obliged to go back to the owner to discuss every minor alteration in method or material after the full extent of problems have been identified during treatment. You certainly don't want to include so much information that the client starts to think he can do the treatment himself.

This information can be provided in your contract as a check list, as a narrative, or as an attachment:

A. Checklist form example:

Object is: Treatment proposed:
x dirty x repair
x broken   fill gaps
  old repairs x clean

 

B. Narrative form example:

The figure has broken in half in the area of a previous mend. Old adhesive will be removed and a new join made. Gaps around the join will be filled and inpainted. The surface will not be cleaned.

C. Attachment form example:

See attached examination record and treatment proposal dated July 4, 1989.

6. Risks

Risks are listed as a separate section in this paper in order to call attention to the issue, but mention of risks is usually included within the context of the proposed treatment. One example might be where the object is in such drastic shape that getting it back together may result in additional small loss of original material. "Notes", "cautions", "comments", whatever word you choose, is useful to include if the conservator believes the owner may not have a realistic expectation of the potential limitations of the treatment. In describing the treatment, it is helpful to make the client aware of likely changes in appearance, or aware of maintenance requirements to prolong the benefits of the treatment.

7. Performance Criteria

Reference material on contract forms often includes a statement that the work will be performed in a workmanlike manner. This wording has special meaning in the law. Be sure that your lawyer sees a copy of the AIC Code of Ethics and Standards of Practice and ask his advice about how to incorporate the spirit and intent of that document into your contract.

8. Procedures for Modifying Agreement

A contract that serves you and your clients well will provide the means for making reasonable changes as work progresses. The following statements are typically found on conservators' contract forms.

No change in the proposed treatment or fee will be made without the written approval of the owner.

The conservator may alter methods or materials from those outlined in the proposal should unforeseen problems arise, with the understanding that if these problems involve aesthetic considerations, reversibility of materials or cost of treatment, he will consult with the Owner prior to continuing treatment.

The proposed treatment may be modified or halted if unforeseen problems arise during the course of the treatment. After consultation with the Owner a revised proposal and new fee structure may be submitted.

9. Provisions for Stopping Work

Some conservators include a statement such as the following:

Once conservation treatment has been started, the work of art shall not be returned until the treatment has been completed.

Other conservators use a statement that provides the owner with some assurance of the object's timely return:

Art work will not be returned to the client once conservation treatment has been started until the treatment has been completed or after the art work has been in the custody of the conservator for x months.

10. Situs for Performance of Work

This is useful to spell out for site jobs where your space requirements may not be fully appreciated by the client and where delays in availability of good work space will cost you money. Some hypothetical examples of these are:

Work will be performed in one of the empty classrooms where running water is available and windows may be opened for ventilation.

Structural work will be performed at the owner's storage facility and surface coatings will be applied after the rigger has assembled the object in the lobby and a ventilated tent has been constructed around the object.

11. Transportation and Shipping

A clear understanding will save time and money. Some people print their customary terms on the contract and write in specific arrangements or changes. The following phrases are found on some conservators' contracts.

All transportation arrangements to and from the conservator's studio are the responsibility of the owner.

If the undersigned ships the work of art, the undersigned shall have the work of art packed and unpacked by competent packers and shall not ship by mail or parcel post without obtaining the approval of the conservator.

If the art work is shipped and has been damaged in transit, the conservator reserves the right to reject the work and refuse to perform the procedures set forth in the proposal, or he may submit a new proposal and fee schedule.

12. Time Table

It makes good business sense to establish a time table but you should give yourself adequate room to accommodate emergency jobs and not have to go back to the client to change the completion date. There are various ways of expressing a time line:

Treatment will be completed by July 4, 1989.

It is estimated that the treatment will be completed within six months of the date the object is delivered to the studio.

Estimated completion date:

13. Cost Estimates and Terms of Payment

You have the option to give a lump sum estimate, to present a range, or to itemize:

A) Cost inclusive of materials and photography: $2,000.

B) Cost inclusive of materials and photography $1,700.- $2,300. (Charges will be billed for time @ $50 per hour plus materials. Total not to exceed $2,300.)

C) Services and treatment as outlined in proposal

There are other considerations about cost and payment terms that may be applicable to the way you want to do business.

A time frame for the expiration of your offer may be set; you can say that the proposal is valid for 30, 45, 60 or any number of days.

You may have to charge state sales tax on some jobs so that it will be useful to print on your contract that sales tax is additional where applicable.

If you do not want the terms of your proposal to expire you may want to state that the estimate is subject to a certain percent inflationary increase after one year.

Terms of payment should be specifically stated - when payments are due, how they are to be made, and what the exact numbers are. Some conservators use the following wording:

Fees for conservation will be paid in the following manner: one half upon approval of treatment proposal; the balance upon completion of treatment.

For extended jobs it is usual to bill either monthly for actual time and materials or to establish an invoice schedule that reflects the general time commitment over the year. Specific details of the payment schedule should appear in the contract.

For large jobs where the conservator may be one of many subcontractors, it may be useful to submit progress payment invoices to the general contractor in a form that is familiar to him, such as on AIA documents G702 and G703 "Application and Certificate for Payment".

14. Provisions for Claiming Work

The conservator will be wise to state on the contract that he will not be required to surrender the art work to anyone other than the undersigned unless certified authorization to do so is presented.

Depending on your kind of business a provision such as the following may be useful although I have never heard of anyone having to follow it.

Works of art in the possession of the Conservator must be claimed within thirty days after notification of completion of the services described in the proposal. If the work of art is not claimed within X days after such notice, the Conservator may, at his option, charge a storage fee or place the object in a commercial storage facility at the Owner's expense, charge insurance fees, and have and enforce a lien for all fees and costs described in the proposal. If after X years, the work of art has not been reclaimed, then, and in consideration of the conservation services fee, storage and insurance, and of safeguarding during such period, the work of art will be sold at public auction by the conservator.

(To my knowledge, at least two conservators have sold works of art under these circumstances, after making diligent efforts to get the client to pick up the work. Ed.)

15. Documentation to be Provided and Proprietary Rights Thereto

There are several points to be made in this section. The following texts are taken from conservators' contracts.

After completion of treatment the owner will receive a written conservation report which will include a photographic record.

Record photography will be made in 35 mm black and white format and presented to the owner in standard contact sheets (or in Ektachrome slides, or whatever). There will be an additional charge for other kinds of photography which must be requested at the time the treatment proposal is authorized.

All proposals and reports are the property of the conservator and may not be used for publication in any form without written permission.

The undersigned agrees that the Conservator may use and publish all photographs, drawings, and written documents made in the performance of the conservation services for scientific and educational purposes.

16. Clients Use of Conservators' Documentation

For some conservation businesses it is prudent to ask your lawyer to insert wording to the effect that the written and photographic documentation you provide to the client may not be used by him or anyone else to draw up specifications for bid by other people or to outline services or treatments to be performed by other people or companies.

17. Liability and Negligence

Your lawyer will no doubt point out to you that you should protect yourself. The contracts I have read contain boilerplate paragraphs such as the following:

The owner agrees to indemnify and hold harmless the conservator, his employees and agents, for any and all liability for any changes, alterations or conditions of the objects due to the treatment proposed.

The Owner waives all claims against the Conservator, his employees and agents, that the owner might hereafter assert for damage or loss to the owner or the work of art, except for willful misconduct or gross negligence.

Your lawyer will probably advise you that you should not assume that this wording will necessarily protect you in all circumstances. It is useful to include because it emphasizes our understanding that the client enters into the agreement at his own risk. This discussion goes back to the subject of your treatment proposal, and should make clear why you need to be as specific as appropriate about what you propose to do and what the risks may be for each contractual arrangement.

To the best knowledge of this writer, there are no clear definitions of the words "negligence" or "gross negligence" as they apply to a conservator's actions towards the custody or treatment of a work of art. There have been no rulings on this issue in a court of law.

In the only published reference I found about negligence as related to conservation practice, Lawrence L. Krasnow remarks:

"A good working definition of the word negligence is an unintentional failure to conform to the standard of the reasonably careful conservator/craftsperson; a departure from the normal. In a court of law, if the issue were negligence, the judge or jury would attempt to determine how the average conservator or craftsperson would act under similar circumstances. Following the standard procedures and recognized methods avoids most problems concerning possible negligence."

18. War and Acts of God

I have seen a number of contracts, that include reference to extreme circumstances.

In the event of danger arising from an Act of God, or as a result of prevailing international conditions including a threat of military violence, the conservator will be free to determine the course to be followed with respect to removing and storing the work of art, and any such determination will be final and shall not subject the conservator to any liability whatsoever.

19. Insurance

There is a wide range of attitudes about insurance, as expressed in various conservators' contracts. Some people have been practicing for years using the following kinds of statements.

Insurance coverage is the responsibility of the client.

During transportation and during treatment in the studio, the object will be insured by the owner.

The conservator does not carry insurance on the property of the depositing persons. It is the responsibility of the depositing owner or agent to insure the art object and to provide a certificate of insurance to the conservator.

This works most of the time and saves money. It doesn't work very well when something goes wrong. Then the conservator has a lot of trouble staying in control of the situation. Any insurance agent can provide examples. If the conservator can get from the client's insurance company a waiver of subrogation rights against the conservator or a rider naming the conservator as a co-insured, much better protection is in hand. These papers are not easy to get, and discussions about them can be very time consuming and wear down both the client's and the conservator's enthusiasm for the project.

More and more conservators are taking out their own fine arts insurance policies and charging the client about $2 per month for each $1,000 of the value represented by the client.

The big names in fine arts insurance do not necessarily provide the best coverage or the best terms but they do have a lot of information about what they think you will need. Check with other conservators to compare the advice you get from insurance professionals. The latter don't usually understand our field. Invest some time in explaining what you do and you may be rewarded with some nice packages that were created for other kinds of professionals but are applicable to our needs.

Frequently clients whose art objects have little monetary value need some guidance in filling out the part of your contract where they are asked to make a statement about value. There is some good discussion about this in the transcript of a meeting of The New York Conservation Association.

20. Statement of Entire Agreement

A boilerplate statement such as either of these given below, is very important to assure that nothing about your business arrangement is assumed or implicit.

This agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, representations or agreements, either written or oral.

This writing constitutes the entire understanding between the parties hereto and supersedes all prior and contemporaneous communications between the parties.

21. Statement of Binding Agreement

Most contracts include a paragraph such as the following:

Agreement shall be binding upon and inure to the benefit of the named parties and their respective heirs, legal representatives, successors and permitted assigns but neither the executed proposal nor any of the rights, interests or obligations hereunder shall be assigned by any party without the prior written consent of the other party.

22. Law Under Which Agreement is Binding

The agreement is usually governed by the laws of your state.

23. Signatures, Identification of Signers, and Dates



Name as in contract heading Owner/Agent


Date Date

 

Many conservators include a line in this final section of the contract to restate the value of the art object.

One conservator includes an additional line for the approval of a living artist.

Concluding Remarks

There you have it -- twenty-three topics of conversation for you and your lawyer. Before you see him about your contract you should sort out for yourself the issues above that you think are important. Your lawyer will help you evaluate the importance of the various issues from the legal point of view. He will add boilerplate phrases to cover all the edges of the agreement. He will add considerations in light of your state laws, such as artists' rights laws, if they exist.

Don't expect your lawyer to be familiar with conservators and what your business does. It may be useful before your meeting to send him a copy of the AIC Code of Ethics and Standards of Practice. When you enter his office you should be prepared with an outline of what you think you need. Good preparation will save you a lot of money.

You certainly won't want to use all the points covered in this paper. You need a contract that reflects you and the kind of business you want to build up and maintain. An exceedingly long contract document full of legal language will give the impression that you are accustomed to dealing with thieves in a combat zone. On the other hand, there is no need to think you will scare off clients with a printed contract that tells them quite frankly the terms under which you are going to take custody of and perform work on their valuable object of art. Curators and owners have become quite accustomed to conservators' contracts over the last ten years.

The advantage of going through the process of preparing a contract is that you end up with a standard document that is a kind of check list every time you enter into an agreement. In the long term you will save time and money.

There are instances where your contract form will not be acceptable, such as for many government agencies. But, you will be in a good position to know how much control you have over the agreement papers presented to you if you have spent time carefully working out your own contract. You will be able to identify very specifically the areas where you are not protected if misunderstandings arise. If the job is interesting to you, you may want to risk working under the client's contract. Some conservators have found that they can protect themselves further and avoid misunderstandings by clarifying vague areas in a memorandum to the person they will report to.

No two conservators will present contract material in the same way. Some people manage to fit everything, including the signature for receipt of the object, onto the same double sided piece of paper. Unless you are stubborn or enjoy puzzles, I recommend you accept the fact that you will need more than one piece of paper.

In conclusion, here are a few practical suggestions. First decide you are going to concentrate on being a good conservator and decide to seek good professional advice in the areas of law, insurance and accounting. Second, recognize the fact that decisions you make now about contract forms and records systems are not written in stone. What is most helpful to you will become apparent as you use your forms. Third, don't hesitate to ask other conservators for help. You can start with the CIPP Business and Management Committee members. If we can't give you answers, we can probably suggest where you may find them, and we can give you some guidelines about how to select a lawyer if you don't already have one.

Notes

1. Dunfee, Gibson, Blackburn, McCarty, Whitman and Lamber, "Introduction to Contracts" in Modern Business Law, 1979, Grid Publishing, Inc., Columbus, Ohio.

The author is grateful for this reference to John C. Scott, Jr. who provided the following abstract from the article:

"In most jurisdictions an enforceable contract will formalize a valid offer, a proper acceptance and sufficient consideration. The enforceable contract will observe proper legal form, will be made by parties having legal capacity, and will involve no fraud, force or legally significant mistake. Of course most such agreements are satisfactorily fulfilled without court action which is the last resort in conflict resolution. Disputes can be resolved through a variety of private methods.

Often business arrangements are informal ones in which performance obligations take precedence over provisions about legal rights. Customary professional practices often provide the basis for resolving disagreements. Professional reputation is critical to business success and reputation often depends a lot on adherence to generally accepted professional practices."

2. Krasnow, Lawrence L., "Legal Aspects of Conservation: Basic Considerations of Contracts and Negligence," in Technology and Conservation, Spring 1982, pp. 38-40.

3. Appelbaum, B. moderator, "Problems Faced by Conservators in Private Practice, Part II: A Panel Discussion." December 10, 1986, The New York Conservation Association, 1987. Second printing 1989. (Send a check for $7.00 made out to the New York Conservation Association to: Harriet Irgang, 120 Bennett Avenue, Apt. 3J, New York, NY 10033.)

This article was first presented at the CIPP Session of the AIC Annual Meeting at Cincinnati, 1989. It is available from AIC in booklet form with a companion article "Record Keeping: Who Wants to Know?" by Holly Maxson.

Reprinted with permission of the author.

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