43 VAN HAM may refuse to accept the bid or accept it subject to reservation. This applies in particular when a bidder, who is not known to the auctioneer or with whom there is no business relationship as yet, does not provide security in the form of bank information or guarantees until – at the latest – the start of the auction. In principle, however, no entitlement to having a bid accepted exists. If a bid is refused, the previous bid remains valid. If several individuals place the same bid and there is no higher bid after three calls, the decision will be made by drawing lots. VAN HAM may revoke acceptance of the bid and re-offer the item if a higher bid that was made in due time has been overlooked by accident, if the highest bidder does not want his bid to stand, or if there are other doubts as to the acceptance. If no bid is successful even though several bids were submitted, VAN HAM is liable to the bidder only for intent or gross negligence. A bidder remains bound to a bid that has been accepted subject to reservation for a period of one month. A bid accepted subject to reservation only becomes valid if VAN HAM confirms the bid in writing within one month after the date of the auction by submitting a corresponding invoice. 5. Purchase Price and Payment 5.1 In addition to the bid award, the buyer must pay a premium of 25% on the first € 100,000 and a premium of 22% on all sums exceeding this amount. This includes statutory VAT, which will however not be stated due to the margin scheme in terms of Section 25a of German Turnover Tax Law. With regards to items listed in the appendix as subject to standard taxation, a premium of 21% on the first € 100,000 and of 18 % on all sums exceeding this amount will be levied, in addition to the bid award. Statutory VAT of currently 7% (for paintings, drawings, sculptures, prints etc.) and 19% (objets d’art, carpets, jewellery, watches, silkscreens, offsets, photographs etc.) respectively will be levied on the sum of bid award and premium. 5.2 Pursuant to Section 26 Para.1 of the German Copyright Act (UrhG), VAN HAM is obliged to pay a droit de suite (artists’ resale rights) on the sales proceeds of all original works of art and original photographic works, whose creators deceased less than 70 years before the end of the legal year of purchase. The buyer shall bear a partial amount in the form of a lump-sum charge amounting to: • 1,5% of the hammer price up to € 200,000 • 0.5% of hammer price in excess of this of € 200,001 to € 350,000 • 0.25% of a hammer price exceeding this of € 350,001 to € 500,000 • 0.125% of any price exceeding the hammer price up to five million; € 6,250 maximum. 5.3 For buyers who have a right to deduct input tax, the invoice may, if desired, (after prior notification) be made out in line with standard taxation. VAT is not charged on shipments to foreign countries (i.e. outside the EU) nor – when the VAT-ID no. is stated – to companies in EU member states. If parties participating in an auction take purchased items into foreign countries themselves, they will be reimbursed the turnover tax as soon as VAN HAM has the export and acquirer certificate. 5.4 Invoices issued during or immediately after the auction must be verified; errors remain reserved to this extent. 5.5 Payment of the total amount due upon acceptance of a bid must be made in cash or by bank certified cheque. Cheques are only accepted on account of performance. All taxes, costs, transfer or encashment fees (including the bank charges deducted by VAN HAM) are to be borne by the buyer. Purchasers who participate in person at the auction must pay VAN HAM the purchase price immediately after the bid is accepted. Without prejudice to the fact payment is due immediately, bids made in absentia may be paid within 14 days of the invoice date without being considered delayed. 5.6 Default in payment commences two weeks after the date of the invoice. Payments must be made to VAN HAM in Euros. The same applies to cheques, which are only accepted as payment once they have been fully cleared by the bank. 5.7 The auctioned items are generally only handed over after full payment of all amount owed by the buyer has been received. 6. Collection and Assumption of Risk 6.1 Acceptance of a bid imposes an obligation to collect the item. Buyers who are not present must collect their items immediately after VAN HAM has advised them that the bid has been successful. AN HAM shall organise the insurance and shipment of the work of art to the buyer only upon the latter’s written instructions and at his cost and risk. Since the purchase price is due immediately and the buyer is obliged to promptly collect his items, he will find himself in default of acceptance no later than two weeks after acceptance of the bid or post-bid, so that then at the very latest, and irrespective of the still undelivered items, the risk will be passed on the buyer. 6.2 If the buyer has not collected the items from VAN HAM at the latest three weeks after his bid has been accepted and/or after he has been notified, VAN HAM will call upon the buyer to collect the items within one week. At the end of said period VAN HAM is entitled to have the items kept in a warehouse at the cost and risk of the buyer. VAN HAM shall inform the buyer prior to storage. If VAN HAM stores the items in his own warehouse, he shall charge 1% p.a. of the hammer price for insurance and storage costs. Irrespective of this, VAN HAM may demand performance of the contract or assert statutory rights for breach of duties. For the purpose of calculating any loss, reference is made to fig. 5 and 8 of these terms and conditions. VAN HAM shall under no circumstances be liable for loss of or damage to items that have not been collected or not handed over due to non-payment, unless VAN HAM acted intentionally or with gross negligence. 6.3 VAN HAM shall under no circumstances be liable for loss of or damage to items that have not been collected or not handed over due to non-payment, unless VAN HAM acted intentionally or with gross negligence. 7. Retention of Title, Offset, Right of Retention 7.1 Title to the work of art passes to the buyer only upon receipt of all payments owed under fig. 5 and 8 in full. In the event that the buyer sells the work of art before he has met all of VAN HAM’s claims, the buyer hereby assigns all claims arising from the resale to VAN HAM. VAN HAM hereby accepts such assignment. 7.2 Against claims by VAN HAM, the buyer can only offset claims that are undisputed or that have been legally and finally determined. 7.3 The buyer has no right of retention based on claims arising from any prior transaction with VAN HAM. Insofar as the buyer is a merchant registered in the commercial register, he waives his rights under Sections 273,320 of the German Civil Code (BGB). 8. Default 8.1 The purchase price is due upon acceptance of the bid. 8.2 In the event of default in payment, default interest of 1% per month is charged. The buyer is entitled to provide evidence that the loss is less or that there is no loss. In addition, in case of default in payment, VAN HAM may elect to demand performance of the purchase contract or may rescind the contract after setting a suitable period for performance. In the event of rescission, all of the buyer’s rights to the purchased work of art shall lapse and VAN HAM shall be entitled to demand damages amounting to the lost fee for the work of art (consignor commission and premium). If the item is re-auctioned at a new auction, then the defaulting buyer is additionally liable for any shortfall in proceeds compared with the earlier auction and for the costs of the repeat auction; he is not entitled to any excess proceeds. VAN HAM has the right to exclude him from further bids in auctions. 8.3 One month after default has occurred, VAN HAM is entitled to and, if the consignor demands it, required to provide the latter with details of the name and address of the buyer. 9. Data Privacy Declaration The buyer agrees that his name, address and any consignments being stored electronically and processed by VAN HAM for the purpose of fulfilling and performing the contractual relationship, as well as to provide information about future auctions and offers. Should the buyer not meet the contractual obligations, within the scope of fulfilling and performing this contractual relationship, then he consents to this fact being added to a list which will be accessible to all auction houses of the Bundesverband Deutscher Kunstversteigerer e.V (German Federal Association of Art Auctioneers). The buyer is entitled to object to the future collection and use of data by removing the said clause or by submitting notice to VAN HAM at a later date 10. Silent Auction VAN HAM shall carry out a so-called “silent auction” for the items listed at the end of the catalogue and marked with “+”. These Auction Terms and Conditions apply accordingly to the “silent auction”, provided that bidders only bid in written form or via the internet. Since the items of the “silent auction” are not called out, no bids can be made in person or by phone. Bids for the “silent auction” must be submitted to VAN HAM at least 24 hours before the start of the auction in order to be valid; in all other respects, please refer to fig.3. 11. Miscellaneous Provisions 11.1 These Auction Terms and Conditions shall govern all relations between the buyer and VAN HAM. The buyer’s General Commercial Terms and Conditions shall not apply. There are no verbal ancillary agreements. Amendments must be made in writing to be valid. 11.2 Insofar as it is possible to agree, Cologne shall be the place of performance and jurisdiction. The law of the Federal Republic of Germany shall apply exclusively. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. 11.3 The aforementioned provisions apply mutatis mutandis to the private sale of items consigned for auction. 11.4 If any of the above provisions are invalid in whole or in part, the validity of the remaining provisions shall be unaffected. The invalid provision shall be replaced by a valid regulation which most closely resembles the commercial content of the provision which was invalid. The same applies if the contract reveals a loophole in need of amendment. In cases of doubt the German version of the Consignment Conditions shall prevail. Markus Eisenbeis (General Partner/Managing Director, publicly appointed and sworn auctioneer) Stand: 1.4.2013
Katalog 320 Robert Sterl
To see the actual publication please follow the link above