General Auction Terms 1. Auction 1.1 VAN HAM Kunstauktionen KG (hereinafter referred to as “VAN HAM”) conducts public auctions as defined by S. 474, ss. 1(2) and S. 383 ss. 3(1) of the German Civil Code (BGB) as commission agent on its own behalf and on account of its clients (the “Sellers”), who remain anonymous. 1.2 The items to be auctioned may be viewed and examined prior to auction, with potential buyers being liable for any damage they may cause to the exhibited items. 2. Condition, Warranty 2.1 The works of art that are up for auction and available for examination and viewing during the advance viewing are, without exception, used items. They are in a state of repair that is consistent with their age and provenance. Objections to the state of repair shall only be mentioned in the catalogue if VAN HAM believes that they significantly affect the visual impression of the work of art as a whole. Lack of information regarding the state of repair shall therefore not establish any warranty or quality agreement as defined by sale of goods laws. Potential buyers may request a condition report for any work of art. Such a report, be it verbal or in writing, shall not contain any diverging individual agreement, and shall express VAN HAM’s subjective assessment only. The information contained in the condition report shall be provided to the best of our knowledge and belief. It shall not constitute any warranty or quality agreement and shall serve the purpose of providing non-binding information only. The same applies to general information of any kind, be it verbal or in writing. The actual state of repair of the work of art at the time the relevant bid is accepted shall, in all events, be its agreed condition as defined by statutory regulations (SS. 434 et seq. BGB). 2.2 Any information contained in the catalogue is based on available data published at the time of publication or other generally available scientific insights. If an additional internet catalogue is prepared, the information in the printed version shall nevertheless prevail; the internet catalogue shall only prevail in the event that no printed catalogue exists or the items are auctioned by a so-called silent auction. VAN HAM reserves the right to correct catalogue information on the works of art that are to be auctioned. Said corrections shall be made by written notice at the auction site and/or announced by the auctioneer immediately before the specific work of art is to be auctioned. The corrected information shall replace the description in the catalogue. 2.3 Irrespective of the provisions of Clause 2.1, only the catalogue information regarding the authorship of the work of art shall form part of the condition agreed with the buyer. VAN HAM does not provide any special warranties that may establish any additional rights (SS. 443, 477 BGB). No characteristics other than authorship of the work of art shall be contractually agreed, even if the work of art is presented for advertising purposes. The same applies to reproductions contained in the catalogue. The purpose of said reproductions is to give potential buyers an idea of the work of art; they form neither part of the quality agreement nor do they warrant the condition of the work of art. 2.4 VAN HAM expressly excludes any liability for potential defects, provided that VAN HAM has complied with its duty of care obligations. 2.5 However, if the buyer is able to demonstrate, within one year from the transfer of possession of the work of art, that catalogue information regarding authorship of the work of art was incorrect and did not correspond to the generally accepted expert opinion at the date of publication, VAN undertakes to assert its rights vis-à-vis the consignor, irrespective of Clause 2.4. Where successful recourse is taken against 324 the consignor, VAN HAM shall reimburse the buyer for the full purchase price only. VAN HAM additionally undertakes to repay its commission in full within a period of one year, if the work of art proves not to be authentic. This is subject to there being no third party claims to the work of art and the work of art being returned to the VAN HAM head office in Cologne in unaltered condition. Inaccuracy shall be considered to have been proven if an internationally recognised expert on the author listed in the catalogue refuses to have the work of art included in the Catalogue Raisonné prepared by the expert, among others. 2.6 Claims for damages against VAN HAM based on legal and material defects and on other legal grounds (including compensation for futile expenses or costs of expert opinions) shall be excluded, unless they are based on VAN HAM acting intentionally or grossly negligently or on VAN HAM breaching material contractual obligations. 2.7 Any claims against VAN HAM shall come under the statute of limitations one year after possession of the work of art for which there has been a successful bid has been transferred, provided that they are not based on an intentional breach of legal rights, or where longer periods of limitations are prescribed by law. 3. Conduct of Auctions, Bids 3.1 The estimates stated in the catalogue do not constitute minimum or maximum prices, but shall serve merely as an indication of the market value of the respective items, without any warranty being given as to their accuracy. Information as to the value in other currencies is provided for information purposes only and shall not be binding. Low-value items may be auctioned as group lots outside the catalogue. 3.2 VAN HAM reserves the right to combine, separate, offer out of sequence or withdraw numbered lots during an auction. 3.3 All bids shall be considered as made by the bidder on its own behalf and for its own account. If a bidder intends to bid on behalf of a third party, relevant notification shall be given 24 hours prior to the start of the auction, stating the name and address of the represented party and submitting a written power of attorney. Otherwise the contract of sale shall be made with the bidder when the bid is accepted. 3.4 VAN HAM provides each bidder with a bidder number following presentation of a valid identification document and admission to the auction. Only bids made using this number shall be considered during the auction. 3.5 Bidders previously unknown to VAN HAM need to submit to VAN HAM a written registration accompanied by a valid identification card no later than 24 hours before the start of the auction. VAN HAM reserves the right to request a current bank reference or other references or a cash deposit before admitting bidders to the auction. 3.6 If the consignor, or a third party instructed by the consignor, submits a bid on an item consigned by the consignor, and this bid is accepted, the consignor’s status shall be equivalent to that of any other bidder. The General Auction Terms therefore apply accordingly to the consignor making a bid for its own items. 3.7 VAN HAM shall be entitled to place a bid or series of bids below the reserve for the consigned lot on behalf of the consignor, without being required to disclose this and irrespective of whether or not other bids are placed. 3.8 The initial bid price shall be determined by the auctioneer; bids are generally submitted in Euros at a maximum of 10% above the previous bid. Bids may be made in person in the auction hall or, in absentia, in writing, by telephone or over the internet via the online catalogue on VAN HAM’s homepage or via a platform approved by VAN HAM. 3.9 The provisions regarding silent auctions (see Clause 10) apply to the catalogue numbers listed at the end of the catalogue and marked with “+”. 3.10 All offers shall be based on the so-called hammer price and shall be exclusive of the premium, VAT and, where applicable, droit de suite (resale rights tax) and customs charges. When there are equal bids, irrespective of whether they are submitted in the auction hall, by telephone, in writing or over the internet, a decision shall be made by drawing lots. Written bids or bids submitted via the internet shall only be drawn on by VAN HAM to the extent required to outbid another bid. 3.11 Absentee bids shall be generally permitted if they are received by VAN HAM at least 24 hours prior to the start of the auction and any additional information pursuant to Clause 3.5 has been provided. Bids shall specify the relevant work of art, along with its catalogue number and catalogue description. In case of doubt, the catalogue number shall be decisive; the bidder shall bear the consequences of any ambiguities. VAN HAM provides the service of processing absentee bids for the convenience of clients free of charge. VAN HAM therefore makes no representations regarding the effectuation or error-free processing of bids. This does not apply where VAN HAM is liable for mistakes made intentionally or through gross negligence. Absentee bids shall be deemed equivalent to bids made in person during the auction when bids are accepted. 3.12 Written bids must be signed by the bidder. In case of written bids, the interested party shall authorise the auctioneer to submit bids on its behalf. 3.13 Telephone bids are possible for estimate of € 500 and above. In this case a telephone operator present in the auction room shall be authorised to submit bids as per the telephone bidder’s instructions. Telephone bids may be recorded by VAN HAM. By applying for telephone bidding, applicants accept that telephone conversations may be recorded. VAN HAM accepts no liability for establishing and maintaining telecommunications connections or for transmission errors. 3.14 Bids made via the internet may be submitted as “pre-bids” prior to the beginning of an auction, as “live bids” during a live web-cast auction, or as “post-bids” after conclusion of the auction in accordance with the following provisions. Bids received by VAN HAM via internet during an auction shall only be considered for the ongoing auction if it is a live, web-cast auction. In the remainder internet bids shall only be admissible if VAN HAM has approved the bidder for internet bidding by providing the bidder with a user name and password. Internet bids shall only be valid bids if they can be unequivocally matched to the bidder by means of the user name and password. Internet bids shall be recorded electronically. The accuracy of the corresponding records shall be accepted by bidders/buyers, who shall nevertheless be free to furnish evidence to the contrary. Live bids shall be considered equivalent to bids made in the auction hall. VAN HAM accepts no liability for establishing technical connections or for transmission errors in case of internet bids. 3.15 Subsequent sales form part of the auction. In the event of post-bids, a contract shall only be made once VAN HAM accepts a bid. 3.16 In case of distance contracts, the right of return and rescission shall not apply to written, telephone or internet bids unless the bid was made in a so-called silent auction. 4. Acceptance of Bids A bid is accepted after the auctioneer has called the highest bidder’s bid three times. When a bid is accepted, a contract of sale is concluded between Stand: 1.10.2013
Katalog 326 Alte Kunst
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