Rules for Sale & General Cond. of Sale
Please note following Special Conditions for Decorative Art Sales
1. All Lots are sold without any warranty.
2. No warranties will be made considering authenticity, age, genuineness, condition, etc.
3. All claims are foreclosed.
4. No photos can be made and/or sent. Additional photos (frames, verso)
can be found in our online catalogue on www.van-ham.com.
5. No condition reports can be compiled.
6. Written bids will gladly be accepted until 48 hours prior to the auction.
7. Bids via telephone will be accepted for lots with a taxation of €500 or more.
8. No bids below the reserve will be accepted.
9. You are kindly required to collect all items within 14 days after the auction. After that, we are compelled to put items which have not been picked up into storage at the cost and risk of the buyer, due to lack of storing capacity.
10. Sale results shall be made available one working day after the sale
on our home page: www.van-ham.com
We thank you for your understanding.
1.
Auction
1.1 VAN HAM Kunstauktionen GmbH & Co. KG (hereinafter referred to as "VAN HAM") conducts public auctions as defined by §474, ss.1(2) and §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 (§§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 (§§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. The liability for life, body or health
remains unaffected.
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 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 VAN HAM and the
bidder whose bid was accepted. VAN HAM may refuse to accept the bid or accept it
conditionally. This applies in particular where a bidder who is not known to the auctioneer
or with whom no business relationship has yet been established fails to provide security
in the form of bank references or guarantees by the start of the auction at the latest.
However, there shall be no entitlement to have a bid accepted as a matter of principle.
Where a bid is rejected, the previous bid shall remain valid. If several individuals place
equal bids and no higher bid is made after three calls, the decision shall be made by
drawing lots. VAN HAM may revoke acceptance of a bid and re-offer the item if a higher
bid made in due time was accidentally overlooked, if the highest bidder does not want
the 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 shall be liable to the bidder only in
case of intent or gross negligence. A bidder shall remain bound by a bid that has been
conditionally accepted for a period of one month. A conditionally accepted bid shall only
become effective if VAN HAM confirms the bid in writing within one month from the
date of the auction.
5. Purchase Price and Payment
5.1 The buyer shall pay the bid price plus 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 listed separately due to the margin scheme as per §25a UStG
(German Sales Tax Act). A premium of 21% on the first €100,000 of the bid price and of
18% on all sums exceeding this amount shall be levied on items listed in the appendix as
subject to standard taxation. Statutory VAT of currently 19% respectively shall be levied
on the total of the bid price and the premium.
5.2 Pursuant to § 26 ss.1 of the German Copyright Act (UrhG), the Seller is obliged
to pay the droit de suite (resale rights tax) on the sales proceeds of all original works
of art and original photographic works whose creators died less than 70 years before
completion of the sale, where such works were sold via VAN HAM. The buyer shall bear a
portion of this in the form of a lump-sum charge amounting to:
• 1.5% of the hammer price up to € 200,000
• 0.5% of the hammer price in excess of € 200,001 up to € 350,000
• 0.25% of the hammer price in excess of € 350,001 up to € 500,000
• 0.125% of the hammer price in excess of this price up to five million,
up to a maximum of € 6,250.
5.3 For buyers entitled to deduct input tax, the invoice may, upon request (and after
prior notification) be made out in line with standard taxation. VAT is not levied on
shipments to third countries (i.e. outside the EU) nor on shipments to companies in
EU member states, provided the VAT ID number is stated. If participants in an auction
transfer purchased items to third countries themselves, they shall be reimbursed for VAT
as soon as proof of export and purchase has been provided to VAN HAM.
5.4 Invoices issued during or immediately after an auction must be verified; errors
remain excepted to this extent.
5.5 Payment of the total amount due upon acceptance of a bid shall be made in cash
or by bank certified cheque. Cheques shall only be accepted on account of performance.
Any taxes, costs, transfer or encashment fees (including any bank fees charged to VAN
HAM) shall be borne by the buyer. Buyers who participate in the auction in person shall
pay the purchase price to VAN HAM immediately after their bid is accepted. Without
prejudice to the fact that payment is due immediately, bids made in absentia may be paid
within 14 days of the invoice date without being deemed to be in default.
5.6 Auctioned items shall, as a matter of principle, only be handed over after full
payment of all amounts owed by the buyer has been received.
6. Collection and Assumption of Risk
6.1 Acceptance of a bid establishes an obligation to collect the item. Absentee buyers
shall collect their items without undue delay after VAN HAM has advised them that their
bid has been successful. VAN HAM shall organise the insurance and shipment of the
auctioned items to the buyer only upon the buyer's written instruction and at the buyer's
cost and risk. Since the purchase price is due immediately and the buyer is obliged to
collect the items without undue delay, the buyer shall be in default of acceptance no later
than 14 days after acceptance of the bid or post-bid, and consequently the risk shall be
transferred to the buyer at this time at the latest, irrespective of the fact that possession
of the item has not yet been transferred.
6.2 If the buyer has not collected the items from VAN HAM three weeks after
acceptance of the bid and/or relevant notification at the latest, VAN HAM shall request
that the buyer collect the items within one week. At the end of said period VAN HAM
shall be entitled to have the items stored in a contract 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 its own warehouse, up to 1% p.a. of the hammer price shall be charged for
insurance and storage costs. Irrespective of this, VAN HAM may alternatively demand
performance of the contract or assert statutory rights for breach of obligations. For
the purpose of calculating any damage, reference is made to Clauses 5 and 8 of these
Conditions.
6.3 VAN HAM shall under no circumstances be liable for loss of or damage to items
that have not been collected or handed over due to non-payment, unless VAN HAM
acted with intent or gross negligence.
7. Retention of Title, Set-off, Right of Retention
7.1 The title to an item acquired by auction shall only pass to the buyer upon full
receipt of all payments owed as per Clauses 5 and 8. In the event that the buyer sells such
an item without having satisfied all of VAN HAM's claims, the buyer hereby assigns to
VAN HAM any claims arising from the resale. VAN HAM hereby accepts such assignment.
7.2 The buyer shall only be able to set off claims against VAN HAM that are undisputed
or that have been legally and finally determined.
7.3 The buyer shall have no right of retention based on claims arising from any
prior transactions with VAN HAM. Insofar as the buyer is a merchant registered in the
commercial register, the buyer waives its rights under §§273, 320 of the German Civil
Code (BGB).
8. Default
8.1 The purchase price shall be due upon acceptance of the bid. The buyer shall be
considered in default 14 days from conclusion of the contract, i.e. acceptance of the bid
or post-bid. Payment is to be made to VAN HAM in Euros. This also applies to cheques,
which shall only be recognised as fulfilment of the payment obligation once they have
been unconditionally credited to the bank account.
8.2 In the event of a default in payment, default interest shall be charged at a rate of
1% per month. The buyer shall be entitled to furnish evidence that a lesser or no loss was
incurred. In the remainder, VAN HAM may, in the event of a default in payment, elect
to demand performance of the contract of sale or rescind the contract after setting a
suitable period for performance. In the event of rescission, all of the buyer's rights to the
item acquired by auction shall lapse, and VAN HAM shall be entitled to claim damages
in the amount of the lost proceeds from the work of art (consignor's commission
and premium). If the item is re-offered at another auction, the defaulting buyer shall
additionally be liable for any shortfall in proceeds compared to the prior auction and
for the costs of the repeat auction; the buyer shall not be entitled to receive any surplus
proceeds. VAN HAM shall be entitled to exclude such a buyer from making further bids at
auctions.
8.3 One month after default has occurred, VAN HAM shall be entitled and, upon the
consignor's request, required to disclose the buyer's name and address to the consignor.
9. Privacy Statement
The bidder hereby agrees to the bidder's name, address and purchases being stored
electronically and processed by VAN HAM for the purpose of fulfilling and performing
the contractual relationship, and for the purpose of providing information about future
auctions and offers. Should the bidder fail to meet its contractual obligations within
the scope of fulfilling and performing this contractual relationship, the bidder consents
to this fact being included in a blacklist accessible to all auction houses of the German
Association of Art Auctioneers (Bundesverband Deutscher Kunstversteigerer e.V.).
The future collection and use of data may be objected to by deleting this clause or
by submitting a relevant statement to VAN HAM at a later date, with effect for the future.
10. Silent Auction
10.1 VAN HAM shall conduct a so-called "silent auction" for the items listed at the
end of the catalogue and marked with "+". These General Auction Terms shall apply
accordingly to such "silent auctions"; however, bidders may only bid in written form or
via the internet. Since the items in "silent auctions" are not called out, no bids can be
made in person or by telephone. Bids for a "silent auction" must be submitted to VAN
HAM in writing at least 24 hours before the start of the auction in order to be valid; in
the remainder please refer to Clause 3.
11. Miscellaneous Provisions
11.1 These General Auction Terms shall govern all relations between the buyer and
VAN HAM. The buyer's general commercial terms and conditions shall not be valid. No
subsidiary oral agreements have been made. Any amendments shall be made in writing.
11.2 The place of performance and place of jurisdiction for business transactions shall
exclusively be Cologne. German law shall apply; the UN Convention on Contracts for the
International Sale of Goods (CISG) shall not apply.
11.3 The aforementioned provisions shall also apply mutatis mutandis to the private sale
of items consigned for auction and, in particular, to post-sales, which are not governed by
the provisions on distance sales as they form part of the respective auctions.
11.4 In the event that 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 provision which most closely resembles the commercial content of the
invalid provision. This applies correspondingly if the contract contains a gap in need of
amendment. In cases of doubt the German version of the General Auction Terms shall
prevail. Translations into other languages merely serve as a guide.
VAN HAM Kunstauktionen GmbH & Co. KG
Markus Eisenbeis
(General Partner and Managing Director; publicly appointed and
sworn auctioneer for arts and antiques)
