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Stuart was a prime example. His grandfather Charlie made the mistake of hiring Cromwell to restore a 17th-century portrait damaged in a great fire. Cromwell was unqualified as a restorer, a profession that remains unregulated in the U.S. and most of Europe, and he botched the job royally by painting over non-damaged areas of the work, thereby covering up the artist’s own brushwork. The crowning blow: Cromwell’s restoration technique was non-reversible, in violation of the Code of Ethics of the International Institute for Conservation of Historic and Artistic Works.

Charlie died and bequeathed the portrait to Stuart, who promptly decided to auction it off. The auction house advised Stuart that the shoddy restoration had greatly reduced the painting’s value — and that’s when he called us.

We suggested as a starting point that Cromwell and his firm may have liability based on professional malpractice. Typically, a court would decide to what extent Cromwell had owed his client a duty of care, skill and knowledge. Stuart would then need to show that Cromwell had breached this duty and that Stuart had suffered an actual loss or damage as a result of this breach.

Depending on where the case was brought, however, Stuart’s claim might be time-barred by the applicable statute of limitations for negligence, which varies from state to state. For instance, in the 1991 District of Columbia case O’Hearn v. Parsons, plaintiffs alleged that a conservator had committed negligence in 1971 by mounting a 15th-century Ming dynasty scroll painting on an unsupported frame rather than on solid backing or on a stretcher with a lattice center. When the painting split in 1983, the plaintiff sued for negligence, malpractice, breach of contract and breach of warranty.

The O’Hearn court reportedly reasoned that the statute of limitations would not begin upon the plaintiff’s discovery of the error, but rather from the date the conservation was performed, and was therefore time-barred by the District of Columbia’s three-year statute of limitations.

In our case Cromwell had signed a contract before beginning the restoration work — something we always advise our clients to do — so we thought that Stuart might be able to benefit from the longer statute of limitations for a breach of contract claim (six years in many states).

We reviewed Cromwell’s contract and found that he had promised to restore the painting to the "best condition possible." Similar wording had been used in an agreement between the City of Amsterdam and the American conservator Daniel Goldreyer for restoration of Barnett Newman’s painting Who’s Afraid of Red, Yellow and Blue 111, which a vandal had slashed in 1986 while it was hanging in the Stedelijk Museum. Amsterdam alleged that Goldreyer had inappropriately overpainted the work (rather than using the "pinpointing method" of layering dots), thereby destroying its translucency, and had applied a sealer that that could not be removed without harming the painting. The dispute resulted in the famous 1995 New York district court case City of Amsterdam v. Daniel Goldreyer, Ltd. Goldreyer argued that the contract claim should be dismissed, since Amsterdam had signed releases when it received the painting. The court held for Amsterdam, reasoning that the validity of the releases was a question of fact to be resolved at trial, and the lawsuit was reportedly settled out of court in 1997.

Unfortunately for Stuart, his grandfather’s contract included two clauses favorable to Cromwell: one absolving him from any liability related to the restoration, and the other waiving all claims by Charlie and his successors. Such clauses are common in the restoration world, and are usually enforceable as long as the restorer has not engaged in willful misconduct or gross negligence — a high hurdle for a would-be plaintiff like Stuart.