Conditions of Sale
Section 1
The Auction House
1.
The auction will be implemented on behalf of Grisebach GmbH -
referred to hereinbelow as "Grisebach". The auctioneer will be acting as Grisebach's representative. The auctioneer is an expert who
has been publicly appointed in accordance with Section 34b paragraph 5 of the Gewerbeordnung (GewO, German Industrial Code).
Accordingly, the auction is a public auction as defined by Section 474
paragraph 1 second sentence and Section 383 paragraph 3 of the
Bürgerliches Gesetzbuch (BGB, German Civil Code).
2.
As a general rule, the auction will be performed on behalf of the
Consignor, who will not be named. Solely those works of art owned by
Grisebach shall be sold at auction for the account of Grisebach.
Such items will be marked by an "E" in the catalogue.
3.
The auction shall be performed on the basis of the present Conditions of Sale. The Conditions of Sale are published in the catalogue of
the auction and on the internet; furthermore, they are posted in an
easily accessible location in the Grisebach spaces. By submitting a
bid, the buyer acknowledges the Conditions of Sale as being binding
upon it.
Section 2
Catalogue, Pre-Sale Exhibition and Date of the Auction
1. Catalogue
Prior to the auction date, an auction catalogue will be published.
This provides general orientation in that it shows images of the
works of art to be sold at auction and describes them. Additionally,
the catalogue will provide information on the work's creator(s),
technique, and signature. These factors alone will define the
characteristic features of the work of art. In all other regards, the
catalogue will not govern as far as the characteristics of the work of
art or its appearance are concerned (color). The catalogue will
provide estimated prices in EUR amounts, which, however, serve
solely as an indication of the fair market value of the work of art, as
does any such information that may be provided in other currencies.
Grisebach will prepare the catalogue to the best of its knowledge and belief, and will exercise the greatest of care in doing so.
The catalogue will be based on the scholarly knowledge published
up until the date of the auction, or otherwise generally accessible,
and on the information provided by the Consignor.
Seriously interested buyers have the opportunity to request
that Grisebach provide them with a report outlining the condition
of the work of art (condition report), and they may also review any
expert appraisals that Grisebach may have obtained.
The information and descriptions contained in the catalogue,
in the condition report or in expert appraisals are estimates; they
do not constitute any guarantees, in the sense as defined by Section
443 of the Bürgerliches Gesetzbuch (BGB, German Civil Code), for
the characteristics of the work of art.
Grisebach is entitled to correct or amend any information
provided in the catalogue by posting a notice at the auction venue
and by having the auctioneer make a corresponding statement
immediately prior to calling the bids for the work of art concerned.
2. Pre-sale exhibition
All of the works of art that are to be sold at auction will be exhibited
prior to the sale and may be viewed and inspected. The time and
date of the pre-sale exhibition, which will be determined by
Grisebach, will be set out in the catalogue. The works of art are used
and will be sold "as is", in other words in the condition they are in at
the time of the auction.
3.
Grisebach will determine the venue and time at which the auction
is to be held. It is entitled to modify the venue and the time of the
auction, also in those cases in which the auction catalogue has
already been sent out.
Section 3
Calling the Auction
1. Bidder number
Grisebach will issue a bidder number to each bidder. Each bidder is
to acknowledge the Conditions of Sale as being binding upon it.
At the latest twenty-four (24) hours prior to the start of the
auction, bidders as yet unknown to Grisebach must register in
writing, providing a written bank reference letter of recent date, so
as to enable Grisebach to issue a bidder number to them.
At the auction, only the bids submitted using a bidder number
will be considered.
2. Item call-up
The auction of the individual work of art begins by its being called up
by the auctioneer. The auctioneer is entitled to call up the works of art
in a different sequence than that published in the catalogue, to join
catalogue items to form a lot, to separate a lot into individual items,
and to pull an item from the auction that has been given a lot number.
When the work of art is called up, its price will be determined
by the auctioneer, denominated in euros. Unless otherwise determined by the auctioneer, the bid increments will amount to 10% of
the respective previous bid.
3. Bids
a) Floor bids
Floor bids will be submitted using the bidder number. A sale and
purchase agreement will be concluded by the auctioneer bringing
down the hammer to end the bidding process.
Where a bidder wishes to submit bids in the name of a third party, it must notify Grisebach of this fact at the latest twenty-four (24)
hours prior to the auction commencing, submitting a corresponding
power of attorney from that third party. In all other cases, once the
work of art has been knocked down, the sale and purchase agreement
will be concluded with the person who has placed the bid.
b) Written absentee bids
Subject to Grisebach consenting to this being done, bids may also be
submitted in writing using a specific form developed for this purpose.
The bidder must sign the form and must provide the lot number, the
name of the artist, the title of the work of art and the hammer price
it wishes to bid therefor. The bidder must acknowledge the Conditions of Sale as being binding upon it.
By placing a written bid, the bidder instructs Grisebach to
submit such bid in accordance with its instructions. Grisebach shall
use the amount specified in the written bid only up to whatever
amount may be required to outbid another bidder.
Upon the auctioneer knocking down the work of art to a written
bid, a sale and purchase agreement shall be concluded on that basis
with the bidder who has submitted such written bid.
Where several written bids have been submitted in the same
amount for the same work of art, the bid received first shall be
the winning bid, provided that no higher bid has been otherwise
submitted or is placed as a floor bid.
c) Phoned-in absentee bids
Bids may permissibly be phoned in, provided that the bidder applies
in writing to be admitted as a telephone bidder, and does so at the
latest twenty-four (24) hours prior to the auction commencing, and
furthermore provided that Grisebach has consented. The bidder
must acknowledge the Conditions of Sale as being binding upon it.
Bids phoned in will be taken by a Grisebach employee present at
the auction on the floor, and will be submitted in the course of the auction in keeping with the instructions issued by the bidder. The bid so
submitted by the bidder shall cover exclusively the hammer price, and
thus shall not comprise the buyer's premium, any allocated costs that
may be charged, or turnover tax. The bid must unambiguously designate the work of art to which it refers, and must wherever possible provide the lot number, the artist and the title of the work.
Grisebach may make a recording of bids submitted by telephone.
By filing the application to be admitted as a telephone bidder, the bidder declares its consent to the telephone conversation being recorded.
Unless it is required as evidence, the recording shall be deleted
at the latest following the expiry of three (3) months.
d) Absentee bids submitted via the internet
Bids may be admissibly submitted via the internet only if Grisebach
has registered the bidder for internet bidding, giving him a user
name and password, and if the bidder has acknowledged the Conditions of Sale as being binding upon it. The registration shall be non transferable and shall apply exclusively to the registered party; it is
thus entirely personal and private. The user is under obligation to not
disclose to third parties its user name or password. Should the user
culpably violate this obligation, it shall be held liable by Grisebach
for any damages resulting from such violation.
Bids submitted via the internet shall have legal validity only if
they are sufficiently determinate and if they can be traced back to
the bidder by its user name and password beyond any reasonable
doubt. The bids transmitted via the internet will be recorded electronically. The buyer acknowledges that these records are correct,
but it does have the option to prove that they are incorrect.
In legal terms, Grisebach shall treat bids submitted via the
internet at a point in time prior to the auction as if they were bids
submitted in writing. Bids submitted via the internet while an auction
is ongoing shall be taken into account as if they were floor bids
4. Knock down
a) The work of art is knocked down to the winning bidder if, following
three calls for a higher bid, no such higher bid is submitted. Upon the
item being knocked down to it, this will place the bidder under
obligation to accept the work of art and to pay the purchase price
(Section 4 Clause 1). The bidder shall not be named.
b) Should the bids not reach the reserve price set by the Consignor, the
auctioneer will knock down the work of art at a conditional hammer
price. This conditional hammer price shall be effective only if Grisebach
confirms this bid in writing within three (3) weeks of the day of the auction. Should another bidder submit a bid in the meantime that is at least
in the amount of the reserve price, the work of art shall go to that bidder; there will be no consultations with the bidder to whom the work of
art has been knocked down at a conditional hammer price.
c) The auctioneer is entitled to refuse to accept a bid, without providing
any reasons therefor, or to refuse to knock down a work of art to a
bidder. Where a bid is refused, or where a work of art is not knocked
down to a bidder, the prior bid shall continue to be valid.
d) The auctioneer may revoke any knock-down and may once again call
up the work of art in the course of the auction to ask for bids; the
auctioneer may do so in all cases in which
- the auctioneer has overlooked a higher bid that was submitted in a
timely fashion, provided the bidder so overlooked has immediately
objected to this oversight;
- a bidder does not wish to be bound by the bid submitted; or
- there are any other doubts regarding the knock-down of the work
of art concerned.
Where the auctioneer exercises this right, any knock-down of a work
of art that has occurred previously shall cease to be effective.
e) The auctioneer is authorized, without being under obligation of
giving notice thereof, to also submit bids on behalf of the Consignor
until the reserve price agreed with the Consignor has been reached,
and the auctioneer is furthermore authorized to knock down the
work of art to the Consignor, citing the consignment number. In such
event, the work of art shall go unsold.
Section 4
Purchase Price, Payment, Default
1. Purchase price
The purchase price consists of the hammer price plus buyer's
premium. Additionally, lump sum fees may be charged along with
statutory turnover tax.
A. a) For works of art that have not been specially marked in the
catalogue, the purchase price will be calculated as follows:
for buyers having their residence in the community territory of
the European Union (EU), Grisebach will add a buyer's premium of
32% to the hammer price. A buyer's premium of 27% will be added
to that part of the hammer price that is in excess of EUR 500,000. A
buyer's premium of 22% will be added to that part of the hammer
price that is in excess of EUR 2,000,000. This buyer's premium will
include all lump sum fees as well as the statutory turnover tax (margin scheme pursuant to Section 25a of the German Turnover Tax
Act). These taxes and fees will not be itemized separately in the invoice.
Buyers to whom delivery is made within Germany, as defined
by the German Turnover Tax Act, and who are entitled to deduct input taxes, may have an invoice issued to them that complies with the
standard taxation provisions as provided for hereinabove in paragraph B. Such invoice is to be requested when applying for a bidder
number. It is not possible to perform any correction retroactively
after the invoice has been issued.
b) Works of art marked by the letter "N" (for Import) are works of art
that have been imported from outside the EU for sale. In such event,
the import turnover tax advanced, in the amount of currently 7%
on the hammerprice, will be charged in addition to the buyer's
premium.
B. For works of art marked in the catalogue by the letter "R" behind the
lot number, the purchase price is calculated as follows:
a) Buyer's premium
Grisebach will add a buyer's premium of 25% to the hammer price.
A buyer's premium of 20% will be added to that part of the hammer
price that is in excess of EUR 500,000. A buyer's premium of 15% will
be added to that part of the hammer price that is in excess of EUR
2,000,000.
b) Turnover tax
The hammer price and the buyer's premium will each be subject to
the statutory turnover tax in the respectively applicable amount
(standard taxation provisions, marked by the letter "R"). Currently,
this amounts to 19%.
c) Exemption from turnover tax
No turnover tax will be charged where works of art are sold that are
acquired in states within the EU by corporations and exported outside of Germany, provided that such corporations have provided
their turnover tax ID number in applying for and obtaining their
bidder number. It is not possible to register this status after the
invoice has been issued, and more particularly, it is not possible to
perform a correction retroactively.
No turnover tax shall be charged for the sale of works of art
that are delivered, pursuant to Section 6 paragraph 4 of the Umsatzsteuergesetz (UStG, German Turnover Tax Act), to destinations
located in states that are not a Member State of the EU, provided
that their buyers are deemed to be foreign purchasers and have
proved this fact in accordance with Section 6 paragraph 2 of the
German Turnover Tax Act. The buyer shall bear any import turnover
tax or duties that may accrue abroad.
The above provisions on turnover tax correspond to the
legislative status quo and are in line with the practice of the Tax and
Revenue Authorities. They are subject to change without notice.
2. Due date and payment
The purchase price shall be due for payment upon the work of art
being knocked down to the buyer.
The purchase price shall be paid in euros to Grisebach.
Cheques and any other forms of non-cash payment are accepted
only on account of performance.
Payment of the purchase price by set-off is an option only
where the claims are not disputed or have been finally and conclusively determined by a court's declaratory judgment.
Where payment is made in a foreign currency, any exchange
rate risk and any and all bank charges shall be borne by the buyer.
3. Default
In cases in which the purchase price has not been paid within two (2)
weeks of the invoice having been received, the buyer shall be
deemed to be defaulting on the payment.
Upon the occurrence of such default, the purchase price shall
accrue interest at 1% per month, notwithstanding any other claims
to compensation of damages that may exist.
Two (2) months after the buyer has defaulted on the purchase
price, Grisebach shall be entitled - and shall be under obligation to
do so upon the Consignor's corresponding demand - to provide to
the Consignor the buyer's name and address.
Where the buyer has defaulted on the purchase price, Grisebach
may rescind the agreement after having set a period of grace of two (2)
weeks. Once Grisebach has so rescinded the agreement, all rights of
the buyer to the work of art acquired at auction shall expire.
Upon having declared its rescission of the agreement,
Grisebach shall be entitled to demand that the buyer compensate it
for its damages. Such compensation of damages shall comprise in
particular the remuneration that Grisebach has lost (commission to
be paid by the Consignor and buyer's premium), as well as the costs
of picturing the work of art in the catalogue and the costs of shipping, storing and insuring the work of art until it is returned or until it
is once again offered for sale at auction.
Where the work of art is sold to a bidder who has submitted a
lower bid, or where it is sold at the next auction or the auction after
that, the original buyer moreover shall be held liable for any amount
by which the proceeds achieved at that subsequent auction are
lower than the price it had bid originally.
Grisebach has the right to exclude the defaulting buyer from
future auctions and to forward the name and address of that buyer
to other auction houses so as to enable them to exclude him from
their auctions as well.
Section 5
Post Auction Sale
In the course of a two-month period following the auction, works of
art that have gone unsold at the auction may be acquired through
post auction sales. The post auction sale will be deemed to be part of the auction. The party interested in acquiring the work of art is to
submit a bid either in person, by telephone, in writing or via the
internet, citing a specific amount, and is to acknowledge the Conditions of Sale as being binding upon it. The sale and purchase agreement shall come about if Grisebach accepts the bid in writing within
three weeks of its having been received.
The provisions regarding the purchase price, payment, default,
pick-up and liability for works of art acquired at auction shall apply
mutatis mutandis.
Section 6
Acceptance of the Work of Art Purchased at Auction
1. Pick-up
The buyer is under obligation to pick up the work of art at the latest
one (1) month after it has been knocked down to the buyer.
However, Grisebach is not under obligation to surrender to the
buyer the work of art acquired at auction prior to the purchase price
set out in the invoice having been paid in full.
Title to the work of art shall devolve to the buyer only upon the
purchase price having been paid in full.
2. Storage
Grisebach shall store the work of art acquired at auction until it is
picked up, doing so at the longest for one (1) month, and shall insure
it at its own cost, the amount insured being equal to the purchase
price. Thereafter, Grisebach shall have the right to store the work of
art with a specialized fine art shipping agent and to insure it there. At
its choice, Grisebach may instead store the work of art in its own
premises, charging a monthly lump-sum fee of 0.1% of the purchase
price for the costs of storage and insurance.
3. Shipping
Where the buyer instructs Grisebach in writing to ship to it the work
of art acquired at auction, subject to the proviso that the purchase
price has been paid in full, Grisebach shall procure the appropriate
shipment of the work of art to the buyer, or to any recipient the buyer
may specify, such shipment being performed by a specialized fine
art shipping agent; Grisebach shall take out corresponding shipping
insurance. The buyer shall bear the costs of packaging and shipping
the work of art as well as the insurance premium.
4. Default of acceptance
Where the buyer fails to pick up the work of art within one (1) month
(Clause 1) and fails to issue instructions for the work of art to be
shipped to it (Clause 3), it shall be deemed to be defaulting on
acceptance.
5. Sale to other parties
Should the buyer, prior to having paid the purchase price in full, sell
the work of art it has acquired at auction, it hereby assigns to
Grisebach, as early as at the present time and on account of performance, the entirety of all claims to which it is entitled under such
onward sale, and Grisebach accepts such assignment. Insofar as the
claims so assigned are in excess of the claims to which Grisebach
is entitled, Grisebach shall be under obligation to immediately
re-assign to the buyer that part of the claim assigned to it that is not
required for meeting its claim.
Section 7
Liability
1. Characteristics of the work of art
The work of art is sold in the condition it is in at the time it is knocked
down to the buyer, and in which it was viewed and inspected. The
other characteristic features of the work of art are comprised of the
statements made in the catalogue (Section 2 Clause 1) regarding the
work's creator(s), technique and signature. These statements are
based on the scholarly knowledge published up until the date of the
auction, or otherwise generally accessible, and on the information
provided by the Consignor. No further characteristic features are
agreed among the parties, in spite of the fact that such features may
be described or mentioned in the catalogue, or that they may garnered from information provided in writing or orally, from a condition report, an expert appraisal or the images shown in the catalogue. No guarantee (Section 443 of the Bürgerliches Gesetzbuch
(BGB, German Civil Code)) is provided for the work of art having any
characteristic features.
2. Buyer's rights in the event of a defect of title being given (Section 435 of
the German Civil Code)
Should the work of art acquired be impaired by a defect of title
because it is encumbered by rights of third parties, the buyer may,
within a period of two (2) years (Section 438 paragraph 4 and 5 of the
German Civil Code), rescind the agreement based on such defect of
title, or it may reduce the purchase price (Section 437 no. 2 of
the German Civil Code). In all other regards, the buyer's rights as stipulated by Section 437 of the German Civil Code are hereby contracted
out, these being the right to demand the retroactive performance of
the agreement, the compensation of damages, or the reimbursement
of futile expenditure, unless the defect of title has been fraudulently
concealed.
3. Buyer's rights in the event of a material defect being given (Section 434 of
the German Civil Code)
Should the work of art deviate from the characteristic features agreed
(work's creator(s), technique, signature), the buyer shall be entitled to
rescind the agreement within a period of two (2) years after the work of
art has been knocked down to it (Section 438 paragraph 4 of the
Bürgerliches Gesetzbuch (BGB, German Civil Code)). The buyer shall be
reimbursed for the purchase price it has paid (Section 4 Clause 1 of the
Conditions of Sale), concurrently with the return of the purchased object in unaltered condition, such return being effected at the registered seat of Grisebach.
Claims to any reduction of the purchase price (Section 437 no.2
of the German Civil Code), to the compensation of damages or the reimbursement of futile expenditure (Section 437 no. 3 of the German
Civil Code) are hereby contracted out. This exclusion of liability shall
not apply should Grisebach have fraudulently concealed the defect.
The right to rescind the agreement for material defects shall be
contracted out wherever Grisebach has sold the work of art for the
account of the Consignor and has exercised, to the best of its ability,
the greatest possible care in identifying the work's creator(s), technique and signature listed in the catalogue, provided there was no
cause to doubt these statements' being correct. In such event,
Grisebach enters into obligation to reimburse the buyer for the buyer's
premium, any allocated costs that may have been charged, and turnover tax.
Moreover, Grisebach shall assign to the buyer all of the claims
vis-à-vis the Consignor to which it is entitled as a result of the defects
of the work of art, providing the Consignor's name and address to the
buyer. Grisebach shall support the buyer in any manner that is legally
available to it and that it is able to apply in enforcing such claims
against the Consignor.
4. Errors in the auction proceedings
Grisebach shall not be held liable for any damages arising in connection with bids that are submitted orally, in writing, by telephone or via
the internet, unless Grisebach is culpable of having acted with intent
or grossly negligently. This shall apply in particular to the telephone,
fax or data connections being established or continuing in service, as
well as to any errors of transmission, transfer or translation in the context of the means of communications used, or any errors committed by
the employees responsible for accepting and forwarding any instructions. Grisebach shall not be held liable for any misuse by unauthorized third parties. This limitation of liability shall not apply to any loss
of life, limb or health.
5. Statute of limitations
The statutory periods of limitation provided for by Section 438
paragraph 1 Clause 3 of the German Civil Code (two years) shall apply
where the statute of limitations of claims for defects is concerned.
Section 8
Final provisions
1. Collateral agreements
Any modifications of the present Conditions of Sale that may be
made in an individual case, or any collateral agreements, must be
made in writing in order to be effective.
2. Translations of the Conditions of Sale
Insofar as the Conditions of Sale are available in other languages
besides German, the German version shall govern in each case.
3. Governing law
The laws of the Federal Republic of Germany shall exclusively apply.
The United Nations Convention on the International Sale of Goods
shall not apply.
4. Place of performance
Insofar as it is possible to agree under law on the place of
performance and the place of jurisdiction, this shall be Berlin.
5. Severability clause
Should one or several provisions of the present Conditions of Sale
be or become invalid, this shall not affect the validity of the other
provisions. Instead of the invalid provision, the corresponding
statutory regulations shall apply.
6. Dispute settlement proceedings
Grisebach GmbH is not obliged nor willing to participate in dispute
settlement proceedings before a consumer arbitration board
