Conditions for buyers at Hessink's
Conditions of Business at Hessinks
Updated: 04-05-2021
GOVERNING SALES AND OTHER BUSINESS AT HESSINK LTD. Also known as Hessink's, Hessink's Auctions and Hessink's veilingen.
The Conditions of Business set out overleaf and all other terms, conditions and notices set out in the catalogues of Hessink's and/or on our online website www.hessink.com and/or announced by the auctioneer or posted in the saleroom by way of notice form the terms on which Hessink's contracts, as auctioneer, with actual and prospective buyers. The Conditions of Business apply in all aspects of the relationship between you and us regarding the sale by us of property. They also apply to you if you repute inspection, appraisal or valuation of property. They are therefore very important and you should read them carefully. You agree that any future dealings which you may have with Hessink's shall be on the Conditions of Business current in the appropriate location at that particular time.
Please note that all sections A to E inclusive contain General Conditions which apply to all sales at Hessink's, unless Alternative Conditions apply. You should note that Hessink's generally act as an agent for the Seller. Any concluded contract of sale is made directly between the Seller and the Buyer. Hessink's is dependent on the Seller for much of the relevant factual material pertaining to items offered for sale. Hessink's cannot and do not undertake full due diligence on every item sold. Buyers therefore have a responsibility to carry out their own inspection and investigations to satisfy themselves as to the nature of the items which they are interested in buying. We specifically draw the attention of all potential Buyers Conditions 5 and 6 which limit the extent to which Hessink's and the Seller may be liable.
Actual and prospective Buyers and Sellers are bound by all Conditions of Business. However, for ease of reference, we have divided the Conditions set out below into sections. Section A explains certain terms that are used regularly throughout the Conditions. Sections B sets out those Conditions which particularly relate to Buyers. Section C sets out used terminology and safety at Hessink's. Where possible in these Conditions of Business, Hessink's are referred to as 'we', 'us' and 'our, and actual and prospective Buyers and Sellers are, as applicable, referred to as 'you' and 'your'.
SECTION A - EXPLANATION AND DEFINITION OF CERTAIN TERMS USED IN THE CONDITIONS OF BUSINESS
In these Conditions of Business, terms placed in inverted commas shall have the meaning set out below:
1. Definitions
a. 'Hammer Price': means the price at which a lot is knocked down or awarded by the auctioneer to the Buyer or, in the case of a post-auction sale, the agreed price; in all instances excluding the Buyer's Premium, any applicable taxes and any Expenses;
b. 'Buyer': means the person who makes the highest bid accepted by the auctioneer, or that person's disclosed principal;
c. 'Expenses': in relation to the sale of any lot means Hessink's charges and expenses for insurance, catalogue and other reproductions and illustrations, any customs duties, advertising, packing or shipping costs, reproduction rights' fees, taxes, levies, costs of testing, searches or enquiries relating to any lot, or costs of collection from a defaulting Buyer, plus an amount in lieu of VAT if applicable on illustration and insurance expenses;
d. 'Reserve': means the minimum Hammer Price at which the Seller has agreed to sell a lot (however see exceptions in condition 10 of The Condition of Sellers);
e. 'Net Sale Proceeds': means the Hammer Price of the lot sold to the extent received by Hessink's, less Seller's commissions and expenses;
f. 'Buyer's Premium': means the commission on the Hammer Price payable to Hessink's by a Buyer at the rates stated in the catalogue and/or on our online website and/or posted in the auction room at the time of the relevant sale, together with an amount in lieu of the Value added Tax (VAT) if applicable;
g. 'Hessink's' or 'we' means: Hessink's Auctions. 'Total Amount Due': means the Hammer Price in respect of the lot sold, together with the Buyer's Premium, and any charges, fees, interest, taxes and expenses due from a Buyer or defaulting Buyer;
i. 'Seller': means the owner or the owner's agent or the person in possession of the property consigned. If there are multiple owners or agents or persons in possession, each shall assume, jointly and severally, all obligations, liabilities, representations, warranties and indemnities as set forth in the Conditions of Business;
j. 'Seller's Commission': means the commission payable to Hessink's by a Seller at the rates applicable at the date of sale of the property or at the date of loss or damage to the property if applicable, together with an amount in lieu of VAT if applicable.
SECTION B - CONDITIONS MAINLY CONCERNING BUYERS
2. Hessink's Capacity
Hessink's sell as an agent for the Seller except where they wholly or partly own any lot as principal. Where Hessink's sell as an agent, any sale will result in a contract directly between the Seller and the Buyer.
HESSINK'S OBLIGATIONS TO BUYERS
3. Our guarantee to you in respect of counterfeit lots
If we sell a lot which subsequently proves to be a counterfeit, we shall set aside the sale and refund to you any amount paid by you to us in connection with the lot in the currency of the original sale. This, however, shall only be available on condition that, no later than four (4) weeks after the date of the sale, you:
a. notify us in writing of the number of the lot, the date of the auction at which it was purchased and the reasons why you consider the lot to be counterfeit, of any information causing you to question the authenticity or attribution of the lot coming to your attention;
b. are able to transfer good title to us free from any third party claims arising after the date of the sale to you;
c. return the lot to us in the same condition as at the date of sale, provided that, in any event, no refund will be available, if either:
1. the lot is in accordance with the catalogue and/or on our online website description or as amended by the auctioneer by public announcement at the time of the auction, either orally or in writing;
2. the catalogue and/or on our online website description at the date of the sale was in accordance with the generally accepted opinions of scholars and experts at that time or the catalogue and/or on our online website description indicated that there was a conflict of such opinions;
3. the only method of establishing that the lot was a counterfeit at the date of publication of the catalogue and/or on our online website was by means of processes which either were not generally accepted for use until after the publication of the catalogue and/or on our online website or else were unreasonably expensive or impractical or likely to have caused damage to the lot or likely, in our reasonable opinion, to have caused loss of value to the lot. An item shall be considered counterfeit where, in our reasonable opinion, it is a deliberate modern forgery, i.e. an imitation created since 1870 with the intention of deceiving as to authorship, origin, date, age, period, culture or source (where the correct description of such matters is not reflected by the description in the catalogue and/or on our online website) and which, at the date of sale, had a value materially less than it would have had if the item had been in accordance with the description in the catalogue and/or on our online website. No lot shall be considered a counterfeit by reason only of any damage and/or restoration and/or modification work of any kind (including repainting or over painting).
It is our general policy, and we shall have the right to request the Buyer to obtain at the Buyer's cost the reports of two independent and recognized experts in the field, mutually acceptable to the Buyer and to us, setting out the reasons why the lot in question is considered to be a counterfeit and Hessink's agree that they will give due consideration to any such expert reports. However, Hessink's reserve the right to seek additional independent advice itself in making its final determination as to whether the lot is a counterfeit and we shall not be bound by any expert report produced by the Buyer. If we agree with the Buyer that the lot is a counterfeit, we shall refund to the Buyer the costs of obtaining two independent expert reports incurred by the Buyer provided that:
a. such costs were approved by us in advance of obtaining such reports;
b. the Buyer could not reasonably have obtained independent opinions prior to the sale. The benefit of this guarantee is not capable of being transferred and is solely for the benefit of the Buyer.
BUYER'S OBLIGATION TO INSPECT
4. The condition and Examination of any lot offered for sale
Goods auctioned are usually of some age. All goods are sold with all faults and imperfections and errors of description. Illustrations in catalogues and/or on our online website are for identification only. The absence of any reference to the condition of any lot does not imply that the lot is in good condition or free from faults, imperfections or restorations. Hessink's are pleased to give a condition report in writing on request. All lots are sold as shown and/or as described on our online website and their attention is drawn to conditions 3, 4 and 5 of the Conditions of Business.
You should also note that we have not tested any electrical or mechanical goods prior to the sale (whether in respect of their ability to function, their safety of operation or otherwise) and you are solely responsible for testing such goods before using them. Accordingly, as regards any lot in which you are interested, you undertake:
a. to inspect and satisfy yourself prior to the sale as to the condition and description of the lot;
b. to rely on your own judgment as to whether the lot accords with its description;
c. to seek any independent expert advice reasonable (in the light of your particular expertise and the value of the lot) to satisfy yourself as to authorship, attribution, authenticity, genuineness, origin, date, age, provenance or condition of the lot;
d. not to rely on any illustration in any catalogue and/or on our online website.
To assist you, we may refer in a catalogue and/or on our online website to particular faults and/or imperfections, but any such guidance which we provide does not purport to be exhaustive. You will be deemed to have knowledge of all matters which you could reasonably have been expected to find out given your particular expertise and the exercise by you of reasonable due diligence.
HESSINK'S LIABILITY TO BUYERS
5. Exclusion of liability
Apart from the guarantee in condition 3 given by Hessink's to the buyer and your rights in relation to the
conduct of auctions as set out in condition 11:
a. Hessink's give no guarantees or warranties to the Buyer and any implied warranties or conditions are excluded (save in so far as such obligations cannot be excluded by statute);
b. In particular, any representations, written or oral and including those in any catalogue and/or on our online website, report, commentary or valuation, in relation to any aspect or quality of any lot, including price or value, are either statements of opinion only or may be revised prior to the lot being offered for sale (including whilst the lot is on public view);
c. None of Hessink's company's and any possibly with Hessink's affiliated companies, agents, employees or director thereof shall be liable to any errors or omissions in any such representations.
6. Limitation on claims by Buyers
Without prejudice to condition 3 and 5 above, and save insofar as it relates to any liability which we may have to personal injury or death, any claim against Hessink's by the Buyer shall be limited to the Hammer Price and the Buyer's Premium actually paid by the Buyer to Hessink's with regard to that lot.
SELLER'S LIABILITY TO BUYERS
7. Seller's obligations to Buyers
The Seller's obligations to you are limited to the same extent as our obligations to you. Any express or implied conditions or warranties are excluded save insofar as it is not possible to exclude obligations implied by statute. In addition, we reserve the right to agree variations to the Seller's warranties with the Seller.
AT THE SALE
8a. Rights of participation at auction
Hessink's have the right, at their absolute discretion, to refuse to allow any person to participate in their auctions and to refuse admission to their premises to any person.
8b. Employee Bidding
Hessink's employees may bid in an Hessink's auction only if the employee does not know the reserve and if the employee fully complies with Hessink's internal rules governing employee bidding.
9a. Sale Room Bidding
To assist the progress of the sale, all intending buyers are asked to collect a bidding card before the commencement of selling. The numbered card may be used to indicate your bids to the auctioneer during the sale. Should you be the successful buyer of any lot, please ensure that your bid card can be seen by the auctioneer and that it is your number that is called out. Should there be any doubt as to price or buyer, please draw the auctioneer's attention to it immediately. All lots sold will be invoiced to the name and address given against the issue of the numbered bid cards. Please do not mislay your bid card, in the event of loss, inform the sales clerk. At the end of the sale please return your bid card to the reception desk. This system does not apply to commission/order bidders. For bidding on our 'online' auctions, please consult our website: www.hessink.com.
9b. Bidding as principal
If you make a bid at auction, you do so as principal and will be held personally and solely liable for that bid unless we have previously agreed with you in writing that you do so on behalf of an identified third party who is acceptable to us. In circumstances where we have so agreed, both you and the third party will be jointly and severally liable for all obligations arising from the bid and the third party shall be bound by the Conditions of Business by your bidding as his agent in the same way as if he were bidding personally, even if the terms of the Conditions of Business are not known by such third party. You shall be responsible for informing your principal of the terms of the Conditions of Business.
10. Commission and telephone bids
Although your interests are likely to be best served if you attend auctions in person, you may bid by leaving a commission bid or bid by telephone as set forth below. This service is free. Lots will always be bought as cheaply as is allowed by other bids and reserves. Absentee bids when placed by telephone, are accepted only at the sender's risk and must be confirmed by E-mail, fax or letter. Your absentee bid form must be delivered to us at least twenty-four hours before the beginning of any auction session. For bidding on our 'online' auctions, please consult our website: www.hessink.com.
a. Commission bids by post, fax or E-mail
We will seek to carry out any instructions to bid at an auction on your behalf which we receive from you sufficiently in advance of the sale and which we consider, in our discretion, to be sufficiently clear and complete. If we receive commission bids on a particular lot for identical amounts, it will be sold to the person whose bid was received first by us. However, our obligation in relation to commission bids is undertaken subject to our other commitments at the time of sale and the conduct of the sale may be such that we are unable to bid as requested. We cannot accept liability for failure to make a commission bid for any reason. You should therefore attend personally or send an agent to the auction if you wish to be certain of bidding. For bidding on our 'online' auctions, please consult our website: www.hessink.com.
b. Telephone bids
We may be prepared to allow you to bid by telephone, but, in such circumstances, we reserve the right to require you to confirm relevant details in writing before we agree to do so. You shall confirm your telephone bid to Hessink's at least one day before the auction. We are not responsible for the failure of any telephone bid for any reason. We reserve the right to record telephone bids
c. E-mail address for bids only on: contact@hessink.com
d. Fax numbers for bids only on:
e. For bidding on our 'online' auctions, please consult our website: www.hessink.com.
Please note: Hessink's offer this service as a convenience to their clients who are unable to attend the sale. However, neither Hessink's nor their servants are responsible for any neglect or default in doing so or for failing to do so.
11. Conduct of the auction
The auctioneer will commence and advance the bidding in levels that he/she considers appropriate in the light of the value of the lot under auction and of competing bids. The auctioneer is entitled to make the consecutive bids on behalf of the Seller up to the Reserve placed on the lot, although the auctioneer will not indicate during the auction that he is making such bids on behalf of the Seller. The Buyer acknowledges the rights of the auctioneer and the Seller set out in this condition and waives any claim that he might have in this connection against Hessink's or the Seller. For bidding on our 'online' auctions, please consult our website: www.hessink.com.
12. Sale of a lot
The person who makes the highest bid accepted by the auctioneer shall be the Buyer. The striking of the auctioneer's hammer marks the acceptance of the highest bid and identifies the Hammer Price at which the lot is knocked down by the auctioneer to the Buyer. For bidding on our 'online' auctions, please consult our website: www.hessink.com.
13. Auctioneer's discretion
Notwithstanding conditions 11 and 12 above, the auctioneer has absolute discretion at any time during the course of the auction to:
a. withdraw any lot;
b. re-offer a lot for sale if the auctioneer reasonably believes that there is an error or dispute;
c. take such other action as he reasonably thinks fit in the circumstances.
14. Currency converter
Auctions are conducted in Euro.
15. Video images
At some auctions, there will be a video screen in operation for the convenience of both Buyers and Sellers. Errors may occur in the operation of the video screen. We cannot accept responsibility either for the quality of the image produced on the video screen, nor for the correspondence of the screen image to the original.
AFTER THE SALE
16a. Payment and Buyer's premium
In addition to the hammer price, the successful bidder agrees to pay us a buyer's premium on the hammer price of each lot sold. On all lots we charge 25% of the hammer price up to and including €400.000, 20% on that part of the hammer price over €400.000 and up to and including €4.000.000, and 14.5% of that part of the hammer price above €4.000.000. VAT will be added to the buyer's premium and is payable by you. You may be eligible to have a VAT refund in certain circumstances if the lot is exported.
16b. Methods of Payment
1. Cash: The Conditions of Business require buyers to pay immediately for their purchases by cash. Cash payments are accepted to a maximum of €10.000 or an equivalent in other currencies, excluding
foreign payment exchange rate costs of 2 %. This is also applicable for payments in instalments.
2. Bank: Please state your account number and invoice number as reference with your payment. For transactions by computer, please contact our office: contact@hessink.com
An official proof of identification must be presented by all bidders who make a purchase above €7.500, in accordance with EU law.
16c. VAT and Taxes
The successful bidder is responsible for all applicable tax including any VAT, sales or compensating use tax or equivalent tax wherever such taxes may arise on the hammer price and the buyer's premium. VAT charges and refunds depend on the particular circumstances of the buyer. It is the buyer's responsibility to ascertain and pay all taxes due. VAT is payable on the buyer's premium and, for some lots, VAT is payable on the hammer price. Following the departure of the UK from the EU (Brexit), UK VAT and Customs rules will apply on lots sold from the UK.
For lots shipped to the United States, sales or use tax may be due on the hammer price, buyer's premium and/or any other charges related to the lot, regardless of the nationality or citizenship of the purchaser. Hessink's will collect sales tax where legally required. The applicable sales tax rate will be determined based upon the state, county, or locale to which the lot will be shipped. Successful bidders claiming an exemption from sales tax must provide appropriate documentation to Hessink's prior to the release of the lot. For shipments to those states for which Hessink's is not required to collect sales tax, a successful bidder may be required to remit use tax to that state's taxing authorities. Hessink's recommends you obtain your own independent tax advice with further questions.
17. Artist's Resale Royalty ('Droit De Suite/Volgrecht')
In certain countries, local laws entitle the artist or the artist's estate to a royalty known as 'artist's resale right' when any lot created by the artist is sold. If these laws apply to a lot, you must pay us an extra amount equal to the royalty. We will pay the royalty to the appropriate authority on the seller's behalf.
The artist's resale royalty applies if the hammer price and buyer's premium (excluding VAT)of the lot is 3.000 euro or more. The total royalty for any lot cannot be more than 12.500 euro. We work out the amount owed as follows:
Royalty for the portion of the hammer price and Buyer's premium (excluding VAT) (in euros) 4% up to 50.000
3% between 50.000.01 and 200.000 1% between 200.000,01 and 350.000
0.50% between 350.000,01 and 500.000
over 500.000, the lower of 0.25% and 12.500 euro.
18. Collection of purchase
You shall collect the purchased lot, at your expense, no later than twenty-one (21) working days after the last day of the sale. The lot shall not be released to you before you have fully complied with all your obligations to Hessink's.
19. Passing of title
You shall always remain liable for the Total Amount Due and you shall not acquire title to the lot sold until you have made payment in full of the Total Amount Due in respect of that lot and Hessink's have applied such payment to the lot. Any monies received from you shall be applied in order of the oldest debt owed by you to Hessink's or the oldest purchase made by you at Hessink's having regard to the date of the sale and the number of the lot.
20. Transfer of risk
Any lot purchased is entirely at your risk from the earlier of:
a. the time you collect the lot purchased;
b. the time that you pay us the Total Amount Due for the lot;
c. three (3) working days after the last day of the sale.
You shall be solely responsible for insuring the lot purchased from the time risk passes to you. You will be compensated for any loss or damage to the lot which occurs after sale but prior to the time risk passes to you. The maximum amount of compensation shall be the Hammer Price of the lot plus the Buyer's Premium received by Hessink's, and shall exclude any indirect or consequential loss or damage. However, we will not, in any circumstances, be liable for any loss or damage caused to frames or to glass which is covering prints, paintings or other works unless the frame or glass itself is, in itself, the object sold at auction. Nor will we be liable for loss or damage caused by any of the events set out in condition 8 under a. through e. at The Condition of Sellers.
21. Shipping, Packing and Handling
HESSINK's can arrange shipping on your behalf. For shipping enquiries please contact Hessink's offices, quoting your client, sale & lot number to discuss your shipping requirements via Tel: +31 (0)6 53 91 01 32 or office@hessink.com
The packing and handling of lots is entirely at your risk and expense and we shall not, in any circumstances, be responsible for any acts or omissions of packers or shippers.
Hessink's is not under any obligation to assist with packing and/or shipping, and we have the right to refuse a request for packing or shipping.
22. Export/Import
The export or import of any lot into any country may be subject to one or more export or import licenses being granted. It is the Buyer's responsibility to obtain any relevant export or import license. The denial of any export or import license required or any delay in the obtaining of such license shall not justify the rescission or cancellation of the sale by you or any delay by you in making payment of the Total Amount Due for the lot.
23. Remedies for non-payment
If the Total Amount Due is not paid in accordance with condition 16, we shall, in our discretion and without prejudice to any other rights which we and the Seller may have, be entitled, both for ourselves and as agent for the Seller, to exercise any or more of the following rights or remedies:
a. cancel the sale of the lot in which case you shall be liable for any damages that we may suffer. Damages will in any case be equal to the Total Amount Due plus any Expenses;
b. apply any payments made by you to us as part of the total Amount Due or otherwise towards any costs incurred in connection with the (re)sale of the lot;
c. arrange and carry out a resale of the lot by public auction, on our online website or on a private sale in mitigation of the debt owed by you to us;
d. exercise a lien over any of your property which is in our possession for any reason, until payment of all outstanding amounts due to us have been made in full;
e. charge you the Seller's and our reasonable legal and administrative costs incurred and set off any amounts owed by us to you against any amounts you owe to us, whether as to the results of any proceeds of sale or otherwise;
f. charge you interest on all outstanding amounts at a rate of the base rate 1% (one per cent) per month;
g. insure, remove and store the lot either at our premises or elsewhere at your sole risk and expense;
h. reject any bids made by you or on your behalf at any future auction or require you to make a deposit with us before accepting any such bids.
You and the Seller:
a. consent to and authorize us to arrange and carry out such resale on the Conditions of Business applicable at the time of such resale;
b. agree that the level of the Reserve and the estimates relevant to such resale shall be set out at our sole discretion. The Net Sale Proceeds will be applied in reduction of your debt. If a resale should result in a lower price than the original Hammer Price obtained, we and the Seller will be entitled to claim the balance from you together with any costs incurred in connection with your failure to make payment. If the resale should result in a higher price than the Hammer Price obtained, the surplus shall be paid to the Seller.
24. Remedies for failure to collect purchases
If you do not collect a purchased lot within five (5) working days after the sale, we may arrange storage of the lot at your risk and expense.
SECTION C - USED TERMINOLOGY AND SAFETY AT HESSINK's
The following are examples of the terminology used in this catalogue and/or on our online website. Any statement as to authorship, attribution, origin, date, age, provenance and condition is a statement of opinion and is not to be taken as a statement of fact.
Please read carefully the terms of the Authenticity Guarantee and the Conditions of Business for Buyers set out in this catalogue, in particular conditions 3 and 4.
1. DAVID TENIERS
In our opinion a work by the artist. When the artist's forename(s) is(are) not known, a series of asterisks (*), followed by the surname of the artist, whether preceded by an initial or not, indicates that in our opinion the work is by the artist named.
ATTRIBUTED TO DAVID TENIERS
In our opinion probably a work by the artist, but less certainty as to authorship is expressed than in the preceding category.
2. STUDIO OF DAVID TENIERS
In our opinion a work by an unknown hand in the studio of the artist which may or may not have been executed under the artist's direction.
3. CIRCLE OF DAVID TENIERS
In our opinion a work by an as yet unidentified but distinct hand, closely associated with the named artist but not necessarily his pupil.
4. STYLE OF …..; FOLLOWER OF DAVID TENIERS
In our opinion a work by a painter working in the artist's style, contemporary or nearly contemporary, but not necessarily his pupil.
5. MANNER OF DAVID TENIERS
In our opinion a work in the style of the artist and of a later date.
6. AFTER DAVID TENIERS
In our opinion a copy of a known work of the artist.
7. The term signed and/or dated and/or inscribed means that in our opinion the signature and/or date and/or inscription are from the hand of the artist.
8. The term bears a signature and/or date and/or inscription means that in our opinion the signature and/or date and/ or inscription have been added by another hand.
9. Dimensions are given height before width.
SAFETY AT HESSINK'S
Hessink's are concerned for your safety while you are on our premises and we endeavour to display items safely so far as is reasonably practicable. Nevertheless, should you handle any items on view at our premises, you do so at your own risk.
Some items can be large and/or heavy and can be dangerous if mishandled. Should you wish to view or inspect any items more closely please ask for assistance from a member of Hessink's staff to ensure your safety and the safety of the property on view.
Some items on view may be labelled 'PLEASE DO NOT TOUCH'. Should you wish to view these items you must ask for assistance from a member of Hessink's staff, who will be pleased to assist you.
Any notice sent to us shall be sent to; Contact@hessink.com
