2. Condition, Warranty.
3. Conduct of Auctions, Bids.
4. Acceptance of Bids.
5. Purchase Price and Payment.
6. Collection and Assumption of Risk.
7. Retention of Title, Offset, Right of Retention.
9. Data Privacy Declaration.
10. Silent Auction.
11. Miscellaneous Provisions.
1.1 VAN HAM Kunstauktionen KG (hereinafter referred to as “VAN HAM”) conducts auctions in a public auction in terms of Section 474, Para.1 Line 2 and Section 383 Para. 3 Line 1 of the German Civil Code (BGB) as a commissioner on his own behalf and on account of the clients (the „sellers“), who shall remain anonymous.
1.2 The items to be auctioned may be viewed and examined prior to the auction, potential buyers being liable for any damage caused by them to the items exhibited.
2. Condition, Warranty
2.1. The works of art that are up for auction and can be examined and viewed as part of the advance viewing are, without exception, used items. They are in a state of repair that corresponds to their age and provenance. Objections to the state of repair are only mentioned in the catalogue if, in the opinion of VAN HAM, they adversely affect the visual impression of the work of art as a whole. Lack of information regarding the state of repair does therefore not justify any claims based on a guarantee or agreement on the condition. Potential buyers may request a condition report for every work of art. This report, be it verbal or written, does not contain any differing, individually negotiated terms, and expresses VAN HAM’s subjective assessment only. The information contained in the condition report is provided to the best of our knowledge and belief. It does not constitute any guarantee or agreement on the condition and serves the purpose of the provision of nonbinding information only.
The same applies to general information of any kind, be it verbal or written. In all cases the actual state of repair of the work of art at the time of the acceptance of the bid is the agreed condition in terms of statutory provisions (Sections 434 et seq. of the German Civil Code (BGB)).
2.2 All information contained in the catalogue is based on knowledge published until the date on the auction and on other general scientific knowledge available to the public. If an additional internet catalogue is prepared, the information in the printed version shall nevertheless prevail; only in the event that no printed catalogue exists or that the items are auctioned in a silent auction shall the internet catalogue prevail. VAN HAM reserves the right to correct catalogue information on the works of art that are to be auctioned. Said correction is made by written notice at the location of the auction and/or orally by the auctioneer immediately before the specific work of art is auctioned. The corrected information will replace the description in the catalogue.
2.3 Irrespective of the provisions laid down in fig.2.1, the information in the catalogue relating to authorship of the work of art is part of the condition that is agreed with the buyer. VAN HAM provides no special guarantee resulting in additional rights (Sections 443, 477 of the German Civil Code (BGB)).
Characteristics of the condition other than authorship of the work of art are not contractually agreed, even if the work of art is presented for advertising pur - poses. 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 are neither an integral part of the agreement on the condition nor a guarantee with regards to the condition.
2.4 VAN HAM is explicitly excluded from liability for any defects, provided statutory liability is not mandatory by law.
2.5 If, however, within one year of transferring the work of art, the information in the catalogue concerning authorship is deemed to be incorrect and did not correspond to the acknowledged opinion of experts on the day of the auction, VAN pledges to assert his rights vis-à-vis the consignor, irrespective of fig.2.4. in the event of successfully taking recourse to the consignor, VAN HAM shall reimburse the buyer for no more than the full purchase price. Furthermore, provided proof of unauthenticity is furnished, VAN HAM promises to return the premium in full for a period of two years. This is subject to there being no third party claims to the work of art and the work of art being returned in unaltered condition to the VAN HAM headquarters in Cologne.
Proof of inaccuracy is also considered as given if an internationally recognised expert on the author refuses to include the work of art in the Catalogue Raisonné prepared by him.
2.6 Damages claims against VAN HAM for legal and material defects and on other legal grounds (including compensation for futile expenses or cost for expert opinions) are excluded unless they are due to intentional or grossly negligent conduct by VAN HAM or to the breach of significant contractual duties by VAN HAM or are caused by injury to life or limb or damage to heal.
2.7 All claims against VAN HAM shall expire after one year after the work of art for which there is a successful bid is handed over, provided they are not due to a legal breach that is intentional or that longer periods of limitation are mandatory by law.
3. Conduct of Auctions, Bids
3.1 The estimates stated in the catalogue are not minimum or maximum prices but are used only as an indication for the market value of the items and no warranty is given as to their accuracy. Information as to the value in other currencies than Euro is provided simply for informational purposes and is not 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 are considered as submitted by the bidder on his own behalf and for his own account. If a bidder wishes to bid on behalf of a third party he must notify this 24 hours prior to the start of the auction, stating name and address of the party he is representing and submitting a written power of attorney.
Otherwise the purchase contract is concluded with the bidder when the bid is accepted.
3.4 After presentation of a legal personal-document and admission to the auction, each bidder will be given a bidder’s number by VAN HAM. Only bids using this number will be included in the auction.
3.5 Bidders, so far unknown to VAN HAM, have to submit a written application no later than 24 hours before the auction, together with a document of identification. VAN HAM may ask for a recent bank reference or other references for the admission to the auction.
3.6 With regards to goods consigned, the respective consignor is not permitted to place own bids or to have bids placed by third parties on his behalf. If the consignor, or a third party authorised by him, nevertheless submits a bid and if this bid is accepted, his status is equivalent to that of other bidders.
Therefore, the Conditions of Sale apply accordingly to the consignor.
3.7 VAN HAM is entitled to place a bit or series of bids on behalf of the Seller up to the limit on the consigned lot, without disclosing this openly and irrespective of whether or not other bids are placed.
3.8 The initial bid price is determined by the auctioneer; bids are generally submitted in Euros at maximum 10% above the previous bid. Bids may be made in person in the auction hall or, in absentia, in writing, by phone or over the internet via our online catalogue on VAN HAM’s homepage or via a platform that has been approved by VAN HAM.
3.9 The provisions of silent auctions (cf.fig.10) apply for the catalogue numbers listed at the end of the catalogue and marked with “+”.
3.10 All offers are based on the so-called hammer price and increase with premium, VAT and droit de suite and customs charges where applicable). When there are equal bids, irrespective of whether they were submitted in the auction hall, by phone, 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 taken into consideration by VAN HAM to that amount that is required to outbid another bid.
3.11 Absentee bids are generally permitted if the bidder has applied to VAN HAM for permission at least 24 hours prior to the start of the auction and has, as far as possible, provided additional information pursuant to fig. 3.5. The application must specify the work of art, along with its catalogue number and cata logue description. In case of doubt, the catalogue number is decisive; the bidder shall bear the consequences of any uncertainties. VAN HAM provides the service of executing absentee bids for the convenience of clients free of charge. VAN HAM therefore provides no guarantee for the effectuation or flawless execution of bids. This does not apply where VAN HAM is responsible for a mistake made intentionally or through gross negligence. Absentee bids shall be equivalent to bids made in the auction.
3.12 The written bid must be signed by the bidder.
In the event of written bids, the interested party authori ses the auctioneer to submit bids on his behalf.
3.13 In the event of telephone bids, a telephonist present in the auction hall is authorised to submit bids on instruction of the telephone bidder. Telephone bids may be recorded by VAN HAM. By applying for telephone bidding, the applicant declares that he agrees to the recording of telephone conversations. VAN HAM is not liable for setting up and maintaining telecommunications connections or for transmission errors.
3.14 Bids via the internet can be submitted as “prebids” prior to the beginning of the auction, as “live bids” during a live web-cast auction, or as “postbids” after conclusion of the auction according to the provisions stated hereinafter. Bids received by VAN HAM via internet during an auction will only be taken into account for the respective auction if it is a live, web-cast auction. Furthermore, bids via internet are only admissible if the bidder has been authorised by VAN HAM to bid over the internet by providing him with a user name and password. They only represent valid bids if they can be unequivocally matched to the bidder by means of such user name and password.
Bids via internet are recorded electronically. The accuracy of the corresponding transcripts is accepted by the bidder/buyer, who is nevertheless free to furnish evidence that the transcript is inaccurate.
Live bids are considered equivalent to bids submitted in the auction hall during the auction.
3.15 The after sale is part of the auction. In the event of post-bids, a contract is concluded only after VAN HAM accepts the bid.
3.16With distance contracts, the right of return and rescission shall not apply to written, phone or internet bids unless the bid was made in a socalled 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 purchase contract is concluded between VAN Conditions of Sale Stand: 1.2.2011 HAM and the bidder whose bid was accepted. 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 pre - mium 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 lumpsum 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).
8.1 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 reauctioned 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
I consent to my 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 I not meet my contractual obligations, within the scope of fulfilling and performing this contractual relationship, then I consent 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).
10. Silent Auction
10.1 VAN HAM shall carry out a socalled “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 agree - ments. 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 Inter - national 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)