‡ VITTORIO FELISATI (ITALIANO 1912-2004) MATTINA A MAZZORBO, VENEZIA Firmato e datato 1968 Olio su tela Timbri e iscrizioni dello studio sul retro (50cm x 70cm)
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‡ VITTORIO FELISATI (ITALIANO 1912-2004) MATTINA A MAZZORBO,
USER’S INTRODUCTION
1. As is widely recognised, modern consumer protection law, whether from the U.K. or the E.U., has a steadily increasing impact on the sale of chattels by auction. Furthermore, the Unfair Terms in Consumer Contracts Regulations 1994 apply to auction sales and lay down an indicative, non-exhaustive list of standard terms which may be regarded as unfair and, therefore, not binding on the consumer. These regulations stipulate that contractual terms shall be expressed ‘in plain, intelligible language.’
2. The auctioneer meets possible consumers at two points. Firstly, the seller is a consumer of the auctioneer’s services.
Secondly, buyers, though not primarily contracting with the auctioneer, who is merely an agent for the seller, nevertheless normally contract on standard conditions laid down by the auctioneer as an agent. These conditions create a direct contract between the buyer and the auctioneer.
3. The opportunity has been taken to create the most up-to-date ‘Conditions of Business’ from the ‘model’ provided by the Royal Institution of Chartered Surveyors by consultation with the Office of Fair Trading. It is designed to reflect the law and provide reasonable protection for the seller, the auctioneer, and the buyer regarding duties and liabilities arising in the numerous transactions throughout England and Wales. The authors had in mind general and specialised sales of chattels, including fine art and jewellery.
4. The primary documents are the ‘Terms of consignment for sellers’ and the ‘Conditions of sale.’ Many auction houses have made little attempt to separate these two essential documents and essentially use one set of conditions of sale with a short further document for vendors. Of course, sellers must be aware of and consider themselves bound by the relevant sale requirements. If it were not so, the auctioneer would have no authority, for example, to give buyers the benefit of any anti-forgery clause.
Nevertheless, the two transactions between seller and auctioneer, seller and buyer, are entirely separate contracts. Therefore, We have placed considerable importance on using the expression ’Terms of consignment for sellers and other consignors when before the auction takes place, they consign the relevant property for sale, and ‘Conditions of sale’ for transactions which take place by auction.
5. Finally, it is, of course, essential that relevant conditions bind buyers and sellers. It is customary to print conditions of sale in catalogues and/or display them in the saleroom or online before the auction sale occurs. Similarly, sellers should preferably be supplied with a printed version of the ‘Terms of Consignment’ when consigning property for sale. The golden rule is that all parties should notify the relevant terms and conditions before or when making the contract.
INFORMATION FOR BUYERS
1. Introduction: The following informative notes are intended to assist Buyers, particularly those inexperienced or new to our salerooms. Our staff will be happy to help you if there is anything you need help understanding. All sales are conducted on our printed ‘Conditions of Sale’, readily available for inspection and commonly accompanying catalogues.
2. Agency: As auctioneers, we usually contract as agents for the seller whose identity, for confidentiality reasons, is not normally disclosed. Accordingly, if you buy, your primary contract is with the seller.
3. Estimates: Estimates are designed to help buyers gauge what sort of sum might be involved in purchasing a particular lot. The lower estimate may represent the reserve price. Estimates do not include the buyer’s premium or V.A.T. (where chargeable). Estimates are prepared sometime before the sale and may be altered by announcement before the sale. They are in no sense definitive and are subject to constant revision.
4. Buyer’s premium: The ‘Conditions of Sale’ oblige buyers to pay a premium of 25% on the hammer price of each lot purchased. There is no additional charge for lots purchased ‘Live Webcast’ through our website in the case of lots purchased ‘Live Webcast’ through the-saleroom.com, invaluable.com or liveauctioneers.com; this will be charged at 30%. Bidders using easyliveauction.com have the choice of a one-off payment of £3 in addition to the buyer’s premium of 25% or 28%. In addition, V.A.T. is payable on this premium (see below). To clarify, live webcast auctions are NOT sales governed by Distance Selling Regulations – you were allowed to view them, even if you did not.
5. V.A.T.: An asterisk (*) indicates that V.A.T. is payable by the purchaser at the standard rate imposed by current U.K. law on the hammer price as well as being an element in the buyer’s premium; lots are noted in the saleroom by a red dot on the lot number. This V.A.T. imposition is likely because the seller is registered for V.A.T. within the European Union and is not operating the Dealers Margin Scheme or because V.A.T. is due on importation into the U.K. The double symbol (**) indicates that the lot has been imported outside the European Union. The present position is that these lots are liable to a reduced V.A.T. rate on the gross lot price (i.e. both the hammer price and the buyer’s premium). Lots that appear without the above symbols indicate that no V.A.T. is payable on the hammer price. This is because such lots are sold using the Auctioneers’ Margin Scheme, and it should be noted that the V.A.T. included within the premium is not recoverable as input tax. (V.A.T. rates are changing with frequency; please check with HMRC. Government will charge V.A.T. as set by the time of sale.)
6. Condition and description of lots. We are primarily agents for the seller. We are dependent on Information provided by the seller, and whilst we may inspect lots and act reasonably in taking a general view about them, we are generally unable to carry out a detailed or any examination of lots to ascertain their condition in the way in which it would be wise for a buyer to do. Intending buyers have ample opportunity to inspect goods and accept responsibility for inspecting and investigating lots in which they may be interested. Please carefully note the exclusion of liability for the condition of lots contained in the ‘Conditions of Sale.’ Neither the seller nor we, as the auctioneers, accept any responsibility for their condition. In particular, mechanical objects of any age are not guaranteed to be in working order.
There is a 21-day time limit from the date of sale, not the date of collection or receipt. However, as far as we have examined the goods and made a representation about their condition, we shall be liable for any defect which that examination ought to have revealed to the auctioneer but which would not have been shown to the buyer had the buyer examined the goods. Additionally, lots misdescribed in specified circumstances because they are ‘deliberate forgeries may be returned, and repayment made. (The expression ‘deliberate forgery’ is defined in our ‘Conditions of sale’).
7. Electrical goods: Items are tested by a qualified electrician for safety. An item that passes the PAT safety test may not work. Conversely, an item that fails the test may work with minor repairs. ‘Working Order’ and ‘Safe’ are two completely different concepts. The only thing you may take for granted is that the item will be safe at the point of sale. Items that have failed will have their cabling cut to source, labelled and sold ‘For Trade Only.’ You will have to change the object radically from what was sold to you to use it. Therefore, the Auctioneers cannot be held responsible after the point of sale. Those items sold genuinely as ‘antiques or collectables’ will not have been tested and, if bought for use, must be checked over for compliance with safety regulations by a qualified electrician before use. This is an express condition.
8. Export of goods: Buyers intending to export goods should ascertain (a) whether an export licence is required and (b) whether there is any specific prohibition on importing goods of that character because e.g. they may contain prohibited materials such as ivory. Ask us if you need help.
9. Bidding in person: Some form of identification with proof of address will be required if you are unknown to us. Bidders may be required to register before the sale commences, and lots will be invoiced to the name and address on the registration form. Account transfers will not be recognised or facilitated under any circumstances.
10. Absentee bidding: Commission bids may be left with the auctioneers indicating the maximum amount to be bid, excluding the buyer’s premium. They will be executed as cheaply as possible regarding the reserve (if any) and competing bids. If two buyers submit identical commission bids, the auctioneers may prefer receiving the first bid. We can accommodate telephone bidding. This practice has inherent dangers; therefore, all arrangements shall be entirely at the bidder’s risk. Absentee bid instructions must be received by telephone or email 12 hours before the start of the sale.
11. Methods of payment:
Accounts are due for settlement within seven days of the sale.
1. Cash (up to £8,000)
2. Debit Card (Chip & pin limit up to £8,000) (Card Not Present limit £500)
3. Credit Card (Chip & pin limit up to £8,000) (Card Not Present limit £500)
4. Bank Drafts and Building Society Cheques (up to £8,000)
5. Cheques (up to £8,000), cheques must be cleared into our account before items
may be collected)
6. Bank Transfer HSBC UK Bank plc, 1 Prospect Place, Darlington, DL3 7LQ
Account name: Elstob & Elstob Limited Clients Account
Sort code 40-19-03
Account number: 63664872
IBAN: GB04HBUK40190363664872
BIC/SWIFT: HBUKGB4104A
12. Collection and storage: Goods can be collected as soon as they are paid for and within four working days following the sale. All items not collected within four working days of the auction (by 4pm) will be automatically removed to commercial storage and subject to a storage charge of £20 (plus V.A.T.) per lot and to a further storage charge of £2 (plus V.A.T.) per lot per part or the whole day after that. Where a buyer has bought a mixture of large and small pieces, the entire consignment will be sent to storage. Please note that for large consignments, there may be additional charges. These charges will be the sole liability of the purchaser and will be billed directly to them by Bradleys Furniture Carriers Ltd. On payment of all sales and storage costs, items will be available for collection by appointment from Bradleys Furniture Carriers (Darlington, DL1 1AT). T: +44 1325 281332, E: [email protected]. We do not offer a shipping service, but we give you below the details of our recommended shipper, who would be happy to quote you for the despatch of your items. Please note that lots will be released once they are paid for in full, and the shipping cost is payable directly to the company concerned. We will also need your prior authorisation before we release goods to any packer/shipper. Collections from our Ripon saleroom are available Monday to Friday (9am-5pm). Collections are not possible at weekends. You can collect in person, instruct your shipper, or choose our recommended shipper listed below. Please note that we do not offer a shipping service ourselves.
Bradleys Antique Packing Services
T: +44 1325 281332
We regret that, as we have no packing facilities, we cannot pack your lots for your shipper or carrier to collect, so if you intend to arrange your own method of transport, please ensure that the firm you employ understands that they will also need to pack.
13. Past-due payment penalties: Auction accounts have always been due within seven days of the sale. Any outstanding invoice after three days will have a £20 plus vat administration charge applied. We require payment to terms. Payment must be made on time, in total, total without deduction set-off or counterclaim. If the account is outstanding after seven days, we refer the matter to our debt collection agent, Daniels Silverman Limited, which will incur a surcharge of 20% of the debt plus V.A.T. at the prevailing rate. You agree that you will be legally liable to pay us that surcharge and that payment of the same can be enforced against you in court. You also agree to pay interest at the relevant applicable rate under the Late Payment of Commercial Debts (Interest) Act 1998, in which interest is payable both after and before any judgment of the court and continues to accrue.
TERMS OF CONSIGNMENT FOR SELLER
1. Interpretation: In these terms, the words ‘you, ‘yours,’ etc., refer to the seller. If an agent makes the consignment of goods to us, we assume that the seller has authorised the consignment and that the consignor has the seller’s authority to contract. Similarly, the words ‘we,’ ‘us,’ etc. r, refer to the auctioneers.
2. Commission: is charged to sellers at 15% plus V.A.T.
3. Loss and Damage Warranty: The charge for this is included in point 2.
4. Minimum bids and our discretion: All goods are put up for sale WITHOUT RESERVE but at the Auctioneer’s Discretion unless written instructions as to reserves are received at least 48 hours before the commencement of the sale. Reserved goods will usually be offered subject to agreed figures before the sale by clause six and unilaterality by ourselves at the time of sale in the circumstances the auctioneer feels necessary to protect your interests. We may sell lots below the reserve provided we account to you for the same sale proceeds as you would have received the reserve been the hammer price. If you give us ‘discretion’, we may accept a bid of up to 10% below the formal fixed reserve.
5. Reserves and Estimates:
• You are entitled to place a reserve on any lot consigned before the auction, being the minimum hammer price at which that lot may be sold. Reserves must be reasonable, and we may decline to offer goods, which in our opinion, would be subject to an unreasonably high reserve (in which case goods carry the storage and insurance charges stipulated in these ‘Terms of consignment’).
• A reserve, once set, cannot be changed upwards except with our consent.
• Where a reserve has been placed, only we may bid on your behalf and only up to the reserve (if any), and you may in no circumstances bid personally.
• Estimates are not Reserves. Estimates are given as a guide to buyers.
6. Electrical items: These are subject to detailed statutory safety controls. Where such items are accepted for sale, you take responsibility for the cost of testing by external contractors. We reserve the right to dispose of unsafe goods as refuse at your expense and without further reference to the vendor. Test fees start at £5 plus V.A.T. per item.
7. Soft furnishings: The sale of soft furnishings is strictly regulated by statute law in the interests of fire safety. Goods found to infringe safety regulations will not be offered and must be removed at your expense. We reserve the right to dispose of unsafe goods as refuse at your cost and without further reference to the vendor. The minimum fee is £20 plus V.A.T. per item.
The rights of disposal referred to in clauses 7 and 8 are subject to the provision of the Torts(Interference with Goods) Act 1977, Schedule 1, a copy of which is available for inspection on request.
8. Descriptions: Please provide accurate Information about the provenance of goods where this is relevant. There is strict liability for the accuracy of descriptions under modern consumer legislation, and in some circumstances, the responsibility lies with sellers if inaccuracies occur. We will assume that you have approved the catalogue description of your lots unless informed to the contrary. Where we are obliged to return the price to the buyer when the lot is a deliberate forgery under Condition 15 of the ‘Conditions of Sale’ and we have accounted to you for the sale proceeds, you agree to reimburse us the sale proceeds. The liability to reimburse the sale proceeds shall not arise where acting reasonably and honestly and are unaware of the forgery, but we are or ought to have been aware of it.
9. Unsold and withdrawn items: If a reserved item is unsold, it will be re-offered (sometimes within seven days and without notice), and the reserve will be lowered by 30% each time of entry. Lots will be re-offered until sold or collected. Where, in our opinion, an item is unsafe, you must promptly collect such items from the saleroom on being informed. Otherwise, storage charges will be incurred. Suppose goods remain with us, and we have no contrary, written advice of your good intentions. In that case, the items will be moved to storage, and reasonable labour charges will be levied and stored at the rate of £2 plus V.A.T. per lot per day for small items and £10 plus V.A.T. per lot per day for furniture and sizeable items. If any item(s) is un-saleable by failing to attract a bid, we will have absolute discretion to dispose of that item and charge for the service. (See Term 8 for specifics and charges).
10. Withdrawn and bought-in items: Once an item has been entered for sale, should you choose to withdraw it (pre or post-sale,) you will incur a charge of 15% plus V.A.T. on being bought-in or withdrawn after being catalogued. This will be based on any reserve set or lower estimate we would apply.
11. Conditions of sale: You agree that all goods will be sold on our ‘Conditions of Sale.’ In particular, you undertake that you have the right to sell the goods either as owner or agent for the owner. You undertake to compensate us and any buyer or third party for all losses, liabilities and expenses incurred in respect of and as a result of any breach of this undertaking.
12. Authority to deduct commission and expenses and retain premium and interest:
(a) You authorise us to deduct commission at the stated rate and all expenses incurred for your account from the hammer price and consent to our right to retain beneficially the premium paid by the buyer by our ‘Conditions of Sale’ and any interest earned on the sale proceeds until the date of settlement.
(b) You authorise us in our discretion to negotiate a sale by private treaty in the case of lots unsold at auction while they remain on our premises, in which case the exact charges will be payable as if such lots had been sold at auction and as far as appropriate these terms apply.
13. Warehousing: We disclaim all liability for goods delivered to our saleroom without sufficient sale instructions and reserve the right to make a minimum warehousing charge of £2 plus V.A.T. per lot per day for small items and £10 plus V.A.T. per day for furniture and oversized items. Unsold lots are subject to the exact charges if you do not remove them within a reasonable time of notification. If not removed within three weeks, we reserve the right to sell them and defray charges from any net sale proceeds or at your expense to consign them to the local authority or in-house skip for disposal.
14. Settlement: After the sale, settlement of the net sum due to you usually occurs after 21 working days unless the buyer has not paid for the goods. No payment will be made in this case, but we will take your instructions in the light of our ‘Conditions of Sale.’
You must note the liability to reimburse the sale proceeds to us under the circumstances provided in Condition 9 above. You authorise any sums owed by you to us on other transactions to be deducted from the sale proceeds. Therefore, you should bear this potential liability before parting with the sale proceeds until the expiry of 28 days from the date of sale.
Loss and Damage of Goods: Elstob & Elstob Limited is not authorised by the F.S.A. to provide insurance to clients and does not do so. However, for its protection, Elstob & Elstob Limited assumes liability for property consigned to it at the lower pre-sale estimate until the hammer falls. The value of the goods to be covered shall be the gross amount realised or, in the case of unsold lots, the best bid, or in the case of goods withdrawn before a sale that which the specialised staff of ours shall in their absolute discretion estimate to be the auction value of such goods.
• We shall not be responsible for damage to, or the loss, theft or destruction of any goods not so insured upon the owner’s written instructions.
• We shall not be responsible for accidental breakage, loss, or damage, howsoever caused, unless directly caused by the negligence of their employees.
• In respect of any article delivered to us, if the vendor has in force a policy or policies of insurance which is specifically mentioned as being insured, whether or not for any agreed sum or value, the vendor shall notify his insurers of and shall himself note our interest as bailee in such policy or policies.
16. Ownership and Indemnity: The vendor declares that the goods entered are their unencumbered property and are free from any hire purchase or financial agreement. The vendor shall indemnify us against any claims concerning any goods sold by us on the vendor’s behalf.
17. Value Added Tax: A vendor who sends for sale by auction any chattel(s) an asset of business must disclose to us whether or not [s]he has a registered V.A.T. number, and thus the number. This information must be supplied to the auctioneer on or before the sale of the goods.
18. Removal costs: Items for sale must be consigned to the saleroom by any stated deadline and at your expense. We may be able to assist you with this process, but any liability incurred to a carrier for haulage charges is solely your responsibility.
19. Clients’ money: You are advised that all clients’ money is held in the following account with HSBC, 1 Prospect Place, Darlington, DL3 7LQ.
Elstob & Elstob Limited Clients Account
Sort Code 40-19-03 Account number 63664872
This is a low-interest-bearing account. The interest will be retained by the auctioneers and is used to reduce bank costs helping us to continue offering competitive selling fees. Cheques under £50 not banked within six months of the issue may be paid to our nominated charity without further notice.
CONDITIONS OF SALE
Elstob & Elstob Limited (Elstob Auctioneers) carries on business with bidders, buyers, and all those present in the auction room before or in connection with a sale on the following General Conditions and on such other terms, conditions and notices as may be referred to herein.
1. Definitions: In these conditions:
• ‘Auctioneer’ means the firm of (Elstob Auctioneers) or its authorised auctioneer, as appropriate.
• ‘Deliberate forgery’ means an imitation made to deceive as to authorship, origin, date, age, period, culture or source but which is unequivocally described in the catalogue as being the work of a particular creator and which at the date of the sale had a value materially less than it would have had if it had been by the description.
• ‘Hammer price’ means the level of bidding reached (at or above any reserve) when the auctioneer brings down the hammer.
• ’Terms of consignment’ means the stipulated terms and rates of commission on which (Elstob Auctioneers) accepts instructions from sellers or their agents.
• ‘Total amount due’ means the hammer price for the lot sold together with any premium, Value Added Tax chargeable, and any additional charges payable by a defaulting buyer under these conditions.
• ‘Sale proceeds’ means the net amount due to the seller, being the hammer price of the lot sold less commission at the stated rate, Value Added Tax chargeable and any other amounts due to us by the seller in whatever capacity and, however, arising.
• ‘You,’ ‘Your,’ etc., refer to the buyer as identified in Condition 2.
• The singular includes the plural and vice versa as appropriate.
2. Bidding procedures and the buyer:
• Bidders must register their particulars before bidding and satisfy security arrangements before entering the auction room to view or bid.
• The maker of the highest bid accepted by the auctioneer conducting the sale shall be the buyer at the hammer price. Any dispute about a bid shall be settled at the auctioneer’s discretion, with or without their clerks’ guidance, by re-offering the lot during the auction or otherwise. The auctioneer shall act reasonably in exercising this discretion and will not accept any formal complaint as an attempt to undermine their absolute authority from the rostrum.
• Bidders shall be deemed to act as principals.
Our right to bid on behalf of the seller is expressly reserved up to the amount of any reserve, and the right to refuse any bid is also reserved. Elstob Auctioneers is not obliged and is unlikely to give a reason for such a decision.
3. Increments: Bidding increments shall be at the auctioneer’s discretion.
4. The purchase price: The buyer shall pay the hammer price together with a premium thereon of 25%. The exact rate applies to lots purchased via our website. If lots purchased ‘Live Webcast’ through the-saleroom.com, invaluable.com or liveauctioneers.com, this would be charged at 30%. Bidders using easyliveauction.com have the choice of a one-off payment of £3 in addition to the buyer’s premium of 25% or 28%. In addition, V.A.T. is payable on this premium
5. Value Added Tax: V.A.T. on the hammer price is imposed by law on all items listed with an asterisk, double asterisk, or marked with a red dot on the lot number. V.A.T. is charged at the appropriate rate prevailing by law at the date of sale and is payable by buyers of relevant lots. (Please refer to ‘Information for buyers’ for a brief explanation of the V.A.T. position).
6. Payment:
(1) Immediately after a lot is sold, you will:
• give to us, if requested, proof of identity, and
• pay us the total amount due in cash or in such other way as agreed.
(2) Any payments by you to us may be applied towards any sums you owe us on any account, whether express or implied, without regard to any directions of you or your agent.
7. Title and Collection of Purchases:
(1) The ownership of any lots purchased shall only pass to you once you have made payment in full to us of the total amount due for all lots on your account. You are responsible for insurance and the risk of all lot purchases at the fall of the hammer.
(2) You shall, at your own risk and expense, collect any lots that you have purchased and paid for not later than four working days following the day of the auction or upon the clearance of any cheque used for payment (if later) after which you shall be responsible for any collection, storage and insurance charges.
(3) No purchase may be collected, and we shall not release any lot to you or your agent until it has been paid for.
8. Remedies for non-payment or failure to collect purchases:
(1) If any lot is not paid for in full and taken away per these conditions or if there is any other breach of these conditions, we, as agents for the seller and on our behalf, shall, at our absolute discretion and without prejudice, to any other rights we may have, be entitled to exercise one or more of the following rights and remedies:
• To proceed against you for damages for breach of contract.
• To rescind the sale of that lot and/or any other lots we sold to you.
• To resell the lot (by auction or private treaty), in which case you shall be responsible for any resulting deficiency in the total amount due (after crediting any part payment and adding any resale costs). Any surplus so arising shall belong to the seller.
• To remove, store and insure the lot at your expense and, in the case of storage, either at our premises or elsewhere.
• To charge interest at a rate not exceeding 5% over the HSBC standard rate on the total amount due to the extent it remains unpaid for more than seven days after the sale.
• To retain that or any other lot sold until you pay the due amount.
• To reject or ignore bids from you or your agent at future auctions or to impose conditions before such bids are accepted.
• To apply any proceeds of the sale of other lots due or in future becoming due to you towards the settlement of the total amount due and to exercise a lien (that is, a right to retain possession of) any of your property in our control for any purpose until the debt unpaid is satisfied.
(2) We shall, as agents for the seller and on our behalf, pursue these rights and
remedies only as far as is reasonable to make appropriate recovery regarding breach of these conditions.
9. Third-party liability: All public members on our premises are at their own risk and must note the accommodation layout and security arrangements. Accordingly, neither the auctioneer nor our employees or agents shall incur liability for death or personal injury (except as required by law because of our negligence) or similarly for the safety of the property of persons visiting before or at a sale.
10. Commission bids: Whilst prospective buyers are strongly advised to attend the auction and are always responsible for any decision to bid for a particular lot and shall be assumed to have carefully inspected and satisfied themselves as to its condition, we will, if so instructed clearly and in writing execute bids on their behalf. Neither the auctioneer nor our employees or agents shall be responsible for any failure to do so, except where such failure is unreasonable. Where two or more commission bids at the same level are recorded, we reserve our absolute discretion to prefer the first bid so made.
11. Warranty of title and availability: The seller warrants to the auctioneer and you that the seller is the valid owner of the property consigned or is properly authorised by the valid owner to consign it for sale and can transfer good and marketable title to the property free from any third party claims.
12. Agency: The auctioneer usually acts as an agent only and disclaims any responsibility for seller or buyer defaults.
13. Terms of sale: The seller acknowledges that lots are sold subject to the stipulations of these conditions in their entirety and on the ‘Terms of consignment’ as notified to the consignor at the time of the entry of the lot.
14. Descriptions and conditions:
• Whilst we seek to describe lots accurately, it may be impractical for us to carry out exhaustive due diligence on each lot. Prospective buyers are given many opportunities to view and inspect before any sale. They (and any independent experts on their behalf) must satisfy themselves as to the accuracy of any description applied to a lot. Prospective buyers also bid on the understanding that, inevitably, representations or statements by us as to authorship, genuineness, origin, date, age, provenance, condition, or estimated selling price involve matters of opinion. We undertake that any such opinion shall be honestly and reasonably held and accept liability for opinions given negligently or fraudulently. Subject to the preceding, neither we, the auctioneer, our employees, agents, nor the seller accept liability for the correctness of such opinions and all conditions and warranties, whether relating to description, condition or quality of lots, express, implied or statutory, are at this moment excluded. This condition is subject to the following condition concerning deliberate forgeries and applies to save as provided in paragraph 6 ‘ Information to buyers.
• Private treaty sales made under these conditions are deemed sales by auction for purposes of consumer legislation.
To clarify, live webcast auctions are NOT sales governed by Distance Selling Regulations – you were allowed to view them, even if you did not. Therefore Post & Packing or other claims for so-called ‘consequential losses’ are expressly excluded as an express term.
15. Forgeries: Notwithstanding the preceding condition, any lot which proves to be a deliberate forgery (as defined) may be returned to us by you within 21 days of the auction (not collection), provided it is in the same condition as when bought and is accompanied by particulars identifying it from the relevant catalogue description and a written statement of defects and FACTUAL EVIDENCE, not just a chosen ‘Opinion’. If we are satisfied with the evidence presented that the lot is a deliberate forgery, we shall refund the money paid by you for the lot, including any buyer’s premium, provided that
(1) if the catalogue description reflected the accepted view of scholars and experts as at the date of sale or
(2) If you cannot transfer a good and marketable title to us, you shall have no rights under this condition.
The right of return provided by this condition is additional to any right or remedy provided by law or by these ‘Conditions of sale.’
To clarify, live webcast auctions are NOT sales governed by Distance Selling Regulations – you were allowed to view them, even if you did not. Therefore Post & Packing or other claims for so-called ‘consequential losses’ are expressly excluded as an express term.
16. Insurance: An implied term of auction sales is that the buyer assumes full responsibility for every lot at the fall of the hammer. This is the point at which the liability of the vendor and auctioneer ceases.
17. Complaints & Disputes: One of the essential implied terms of auction sales is that the auctioneer and/or their clerk has the right to split or consolidate lots and to accept, refuse & regulate the bidding. In all matters of dispute, the auctioneers will be the sole arbitrator, and their decision will be final. There cannot be any further process beyond that decision.
General:
18. We shall have the right to refuse admission to our premises or attendance at our auctions by any person. Elstob Auctioneers is not obliged and is unlikely to give a reason for such a decision.
19. (1) Any right to compensation for losses, liabilities and expenses incurred in respect of and as a result of any breach of these conditions and any exclusions provided by them shall be available to the seller and/or the auctioneer as appropriate.
(2) Such rights and exclusions shall extend to and be deemed for the benefit of employees and agents of the seller and/or the auctioneer who may enforce them.
20. Any notice to any buyer, seller, bidder or viewer may be given by first class mail or Swift mail, wherein it shall be deemed to have been received by the addressee 48 hours after posting.
21. Special terms may be used in catalogue descriptions of particular classes of items. In this case, the descriptions must be interpreted by any glossary appearing at the commencement of the catalogue.
22. Any indulgence extended to bidders, buyers or sellers by us notwithstanding the strict terms of these conditions or the ‘Terms of consignment’ shall affect the position at the relevant time only and in respect of that particular concession only; in all other respects, these conditions shall be construed as having full force and effect.
23. In line with the new GDPR, anyone can ask how their Information is stored and kept safe. We have set motions to ensure all requests are handled within 14 working days of receipt. As covered by the terms and conditions, a charge of £30+VAT will be payable if the request is deemed manifestly unfound or excessive. If the request is repetitive, the request will be responded to with a refusal for the Information.
24. English law applies to the interpretation of these conditions.
GLOSSARY OF CATALOGUING TERMINOLOGY
Precious Metals
The weights applied to descriptions of platinum, gold, silver, and other precious metals are approximate guides from the most basic equipment, which is not approved for ‘Use-in-Trade.’ All lots are sold as objects and not as ‘Value-by-Weight’, so these are sufficient for the auction sale.
Gemstones and Jewels
Many coloured gemstones have been subjected to various treatments designed to enhance their appearance; for example, heating is extensively used to improve colour or transparency in rubies and sapphires. Other treatments, such as oiling, enhance the clarity of emeralds. Other coloured gemstones may have undergone permanent or semi-permanent treatments such as dyeing, irradiation, coating and impregnation, which may require further re-treatment to retain their appearance. The jewellery trade generally accepts these treatments. Prospective purchasers should assume all gemstones will have been treated unless statements are made to the contrary.
Recent technological advancements have led to some diamonds being treated in various ways designed to enhance their appearance. These treatments can include fracture filling, laser drilling, irradiation and coating. Every effort is made to identify such treatments; however, Elstob & Elstob can’t guarantee that all lots containing diamonds are free of these enhancements.
All dimensions and estimated weights of gemstones have been determined without unsetting the stones and are, therefore, only approximate because of limitations imposed by the mount. Estimated weights are usually calculated by applying standard formulae to the measurements using the most basic equipment.
Books and Printed Matter
These items are not sold subject to collation and are not returnable once removed from the premises.
Paintings, Drawings and Sculpture
Any statement to authorship, attribution, origin, date, age, provenance and condition is a statement or opinion and is not to be taken as a statement or representation of fact. Elstob & Elstob reserve the right, in forming their opinion, to consult and rely upon any expert or authority considered by them to be dependable.
In our opinion, a picture catalogued with the painter’s forename(s) and surname is a work by that artist, e.g. Joseph Mallord William Turner. When an artist’s forename(s) is not known, a series of asterisks followed by the artist’s surname, whether preceded by an initial or not, indicates that, in our opinion, the work is by the artist.
1. Attributed to.... is, in our opinion, probably by the artist.
2. Studio of.... is, in our opinion, a work from the artist’s studio that may or may not have been executed under his direction.
3. Circle of.... is, in our opinion, a work of the artist’s period executed under his immediate influence.
4. Follower of.... is, 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.... is, in our opinion, a work in a style related to that of the artist but of a later date.
6. School…. In our opinion, the picture was executed at that time and in that location.
7. After.... is, in our opinion, a copy of any date after a work by that artist.
8. 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.
9. erm Bears signature and/or dated and/or inscription means that, in our opinion, the artist’s name and/or date and/or inscription have been added by another hand.
10. All references to signatures, inscriptions, and dates refer to the present state of the work.
11. Dimensions are given height before width.
The Artists Resale Right (A.R.R.) or Droit de Suite
In a description, A.R.R. warns the buyer that an extra charge will be payable.
Following the U.K. implementation of the E.U. Artist’s Resale Right directive in February 2006 and the Derogation for Deceased Artists in January 2012, living artists and the heirs of those that died less than 70 years ago may receive a fraction of a resale royalty that is payable by you.
The payment is calculated on qualifying works of art which are sold for more than EUR 1,000. The Artist’s Resale Right Service Hub will calculate the qualifying threshold based on the European Central Bank reference rate published at 2.15 pm on the day of the sale and can be found somewhere on https://dacs.org.uk.
The royalty charge will apply if the hammer price exceeds U.K. sterling, equivalent to EUR 1,000. The royalty will be added to the buyer invoice and must be paid before items can be released.
Auctioneers retain no handling costs or additional fees despite doing all the extra pre- and post-sale administration work. When we have done the unremunerated job for self-described ‘not-for-profit’ collecting societies, we send them the sum from which they will extract their administration fees. Anything left over may go to benefit the artist or their family.
A portion of the hammer price (Euro’s E.U.R.) Royalty Rate
1000 to 50,000 4%
50,000.01 to 200,000 3%
200,000.01 to 350,000 1%
350,000.01 to 500,000 0.5%
Exceeding 500,000 0.25%
V.A.T. is not payable on this royalty charge. The maximum royalty charge is 12,500 EUR.
USER’S INTRODUCTION
1. As is widely recognised, modern consumer protection law, whether from the U.K. or the E.U., has a steadily increasing impact on the sale of chattels by auction. Furthermore, the Unfair Terms in Consumer Contracts Regulations 1994 apply to auction sales and lay down an indicative, non-exhaustive list of standard terms which may be regarded as unfair and, therefore, not binding on the consumer. These regulations stipulate that contractual terms shall be expressed ‘in plain, intelligible language.’
2. The auctioneer meets possible consumers at two points. Firstly, the seller is a consumer of the auctioneer’s services.
Secondly, buyers, though not primarily contracting with the auctioneer, who is merely an agent for the seller, nevertheless normally contract on standard conditions laid down by the auctioneer as an agent. These conditions create a direct contract between the buyer and the auctioneer.
3. The opportunity has been taken to create the most up-to-date ‘Conditions of Business’ from the ‘model’ provided by the Royal Institution of Chartered Surveyors by consultation with the Office of Fair Trading. It is designed to reflect the law and provide reasonable protection for the seller, the auctioneer, and the buyer regarding duties and liabilities arising in the numerous transactions throughout England and Wales. The authors had in mind general and specialised sales of chattels, including fine art and jewellery.
4. The primary documents are the ‘Terms of consignment for sellers’ and the ‘Conditions of sale.’ Many auction houses have made little attempt to separate these two essential documents and essentially use one set of conditions of sale with a short further document for vendors. Of course, sellers must be aware of and consider themselves bound by the relevant sale requirements. If it were not so, the auctioneer would have no authority, for example, to give buyers the benefit of any anti-forgery clause.
Nevertheless, the two transactions between seller and auctioneer, seller and buyer, are entirely separate contracts. Therefore, We have placed considerable importance on using the expression ’Terms of consignment for sellers and other consignors when before the auction takes place, they consign the relevant property for sale, and ‘Conditions of sale’ for transactions which take place by auction.
5. Finally, it is, of course, essential that relevant conditions bind buyers and sellers. It is customary to print conditions of sale in catalogues and/or display them in the saleroom or online before the auction sale occurs. Similarly, sellers should preferably be supplied with a printed version of the ‘Terms of Consignment’ when consigning property for sale. The golden rule is that all parties should notify the relevant terms and conditions before or when making the contract.
INFORMATION FOR BUYERS
1. Introduction: The following informative notes are intended to assist Buyers, particularly those inexperienced or new to our salerooms. Our staff will be happy to help you if there is anything you need help understanding. All sales are conducted on our printed ‘Conditions of Sale’, readily available for inspection and commonly accompanying catalogues.
2. Agency: As auctioneers, we usually contract as agents for the seller whose identity, for confidentiality reasons, is not normally disclosed. Accordingly, if you buy, your primary contract is with the seller.
3. Estimates: Estimates are designed to help buyers gauge what sort of sum might be involved in purchasing a particular lot. The lower estimate may represent the reserve price. Estimates do not include the buyer’s premium or V.A.T. (where chargeable). Estimates are prepared sometime before the sale and may be altered by announcement before the sale. They are in no sense definitive and are subject to constant revision.
4. Buyer’s premium: The ‘Conditions of Sale’ oblige buyers to pay a premium of 25% on the hammer price of each lot purchased. There is no additional charge for lots purchased ‘Live Webcast’ through our website in the case of lots purchased ‘Live Webcast’ through the-saleroom.com, invaluable.com or liveauctioneers.com; this will be charged at 30%. Bidders using easyliveauction.com have the choice of a one-off payment of £3 in addition to the buyer’s premium of 25% or 28%. In addition, V.A.T. is payable on this premium (see below). To clarify, live webcast auctions are NOT sales governed by Distance Selling Regulations – you were allowed to view them, even if you did not.
5. V.A.T.: An asterisk (*) indicates that V.A.T. is payable by the purchaser at the standard rate imposed by current U.K. law on the hammer price as well as being an element in the buyer’s premium; lots are noted in the saleroom by a red dot on the lot number. This V.A.T. imposition is likely because the seller is registered for V.A.T. within the European Union and is not operating the Dealers Margin Scheme or because V.A.T. is due on importation into the U.K. The double symbol (**) indicates that the lot has been imported outside the European Union. The present position is that these lots are liable to a reduced V.A.T. rate on the gross lot price (i.e. both the hammer price and the buyer’s premium). Lots that appear without the above symbols indicate that no V.A.T. is payable on the hammer price. This is because such lots are sold using the Auctioneers’ Margin Scheme, and it should be noted that the V.A.T. included within the premium is not recoverable as input tax. (V.A.T. rates are changing with frequency; please check with HMRC. Government will charge V.A.T. as set by the time of sale.)
6. Condition and description of lots. We are primarily agents for the seller. We are dependent on Information provided by the seller, and whilst we may inspect lots and act reasonably in taking a general view about them, we are generally unable to carry out a detailed or any examination of lots to ascertain their condition in the way in which it would be wise for a buyer to do. Intending buyers have ample opportunity to inspect goods and accept responsibility for inspecting and investigating lots in which they may be interested. Please carefully note the exclusion of liability for the condition of lots contained in the ‘Conditions of Sale.’ Neither the seller nor we, as the auctioneers, accept any responsibility for their condition. In particular, mechanical objects of any age are not guaranteed to be in working order.
There is a 21-day time limit from the date of sale, not the date of collection or receipt. However, as far as we have examined the goods and made a representation about their condition, we shall be liable for any defect which that examination ought to have revealed to the auctioneer but which would not have been shown to the buyer had the buyer examined the goods. Additionally, lots misdescribed in specified circumstances because they are ‘deliberate forgeries may be returned, and repayment made. (The expression ‘deliberate forgery’ is defined in our ‘Conditions of sale’).
7. Electrical goods: Items are tested by a qualified electrician for safety. An item that passes the PAT safety test may not work. Conversely, an item that fails the test may work with minor repairs. ‘Working Order’ and ‘Safe’ are two completely different concepts. The only thing you may take for granted is that the item will be safe at the point of sale. Items that have failed will have their cabling cut to source, labelled and sold ‘For Trade Only.’ You will have to change the object radically from what was sold to you to use it. Therefore, the Auctioneers cannot be held responsible after the point of sale. Those items sold genuinely as ‘antiques or collectables’ will not have been tested and, if bought for use, must be checked over for compliance with safety regulations by a qualified electrician before use. This is an express condition.
8. Export of goods: Buyers intending to export goods should ascertain (a) whether an export licence is required and (b) whether there is any specific prohibition on importing goods of that character because e.g. they may contain prohibited materials such as ivory. Ask us if you need help.
9. Bidding in person: Some form of identification with proof of address will be required if you are unknown to us. Bidders may be required to register before the sale commences, and lots will be invoiced to the name and address on the registration form. Account transfers will not be recognised or facilitated under any circumstances.
10. Absentee bidding: Commission bids may be left with the auctioneers indicating the maximum amount to be bid, excluding the buyer’s premium. They will be executed as cheaply as possible regarding the reserve (if any) and competing bids. If two buyers submit identical commission bids, the auctioneers may prefer receiving the first bid. We can accommodate telephone bidding. This practice has inherent dangers; therefore, all arrangements shall be entirely at the bidder’s risk. Absentee bid instructions must be received by telephone or email 12 hours before the start of the sale.
11. Methods of payment:
Accounts are due for settlement within seven days of the sale.
1. Cash (up to £8,000)
2. Debit Card (Chip & pin limit up to £8,000) (Card Not Present limit £500)
3. Credit Card (Chip & pin limit up to £8,000) (Card Not Present limit £500)
4. Bank Drafts and Building Society Cheques (up to £8,000)
5. Cheques (up to £8,000), cheques must be cleared into our account before items
may be collected)
6. Bank Transfer HSBC UK Bank plc, 1 Prospect Place, Darlington, DL3 7LQ
Account name: Elstob & Elstob Limited Clients Account
Sort code 40-19-03
Account number: 63664872
IBAN: GB04HBUK40190363664872
BIC/SWIFT: HBUKGB4104A
12. Collection and storage: Goods can be collected as soon as they are paid for and within four working days following the sale. All items not collected within four working days of the auction (by 4pm) will be automatically removed to commercial storage and subject to a storage charge of £20 (plus V.A.T.) per lot and to a further storage charge of £2 (plus V.A.T.) per lot per part or the whole day after that. Where a buyer has bought a mixture of large and small pieces, the entire consignment will be sent to storage. Please note that for large consignments, there may be additional charges. These charges will be the sole liability of the purchaser and will be billed directly to them by Bradleys Furniture Carriers Ltd. On payment of all sales and storage costs, items will be available for collection by appointment from Bradleys Furniture Carriers (Darlington, DL1 1AT). T: +44 1325 281332, E: [email protected]. We do not offer a shipping service, but we give you below the details of our recommended shipper, who would be happy to quote you for the despatch of your items. Please note that lots will be released once they are paid for in full, and the shipping cost is payable directly to the company concerned. We will also need your prior authorisation before we release goods to any packer/shipper. Collections from our Ripon saleroom are available Monday to Friday (9am-5pm). Collections are not possible at weekends. You can collect in person, instruct your shipper, or choose our recommended shipper listed below. Please note that we do not offer a shipping service ourselves.
Bradleys Antique Packing Services
T: +44 1325 281332
We regret that, as we have no packing facilities, we cannot pack your lots for your shipper or carrier to collect, so if you intend to arrange your own method of transport, please ensure that the firm you employ understands that they will also need to pack.
13. Past-due payment penalties: Auction accounts have always been due within seven days of the sale. Any outstanding invoice after three days will have a £20 plus vat administration charge applied. We require payment to terms. Payment must be made on time, in total, total without deduction set-off or counterclaim. If the account is outstanding after seven days, we refer the matter to our debt collection agent, Daniels Silverman Limited, which will incur a surcharge of 20% of the debt plus V.A.T. at the prevailing rate. You agree that you will be legally liable to pay us that surcharge and that payment of the same can be enforced against you in court. You also agree to pay interest at the relevant applicable rate under the Late Payment of Commercial Debts (Interest) Act 1998, in which interest is payable both after and before any judgment of the court and continues to accrue.
TERMS OF CONSIGNMENT FOR SELLER
1. Interpretation: In these terms, the words ‘you, ‘yours,’ etc., refer to the seller. If an agent makes the consignment of goods to us, we assume that the seller has authorised the consignment and that the consignor has the seller’s authority to contract. Similarly, the words ‘we,’ ‘us,’ etc. r, refer to the auctioneers.
2. Commission: is charged to sellers at 15% plus V.A.T.
3. Loss and Damage Warranty: The charge for this is included in point 2.
4. Minimum bids and our discretion: All goods are put up for sale WITHOUT RESERVE but at the Auctioneer’s Discretion unless written instructions as to reserves are received at least 48 hours before the commencement of the sale. Reserved goods will usually be offered subject to agreed figures before the sale by clause six and unilaterality by ourselves at the time of sale in the circumstances the auctioneer feels necessary to protect your interests. We may sell lots below the reserve provided we account to you for the same sale proceeds as you would have received the reserve been the hammer price. If you give us ‘discretion’, we may accept a bid of up to 10% below the formal fixed reserve.
5. Reserves and Estimates:
• You are entitled to place a reserve on any lot consigned before the auction, being the minimum hammer price at which that lot may be sold. Reserves must be reasonable, and we may decline to offer goods, which in our opinion, would be subject to an unreasonably high reserve (in which case goods carry the storage and insurance charges stipulated in these ‘Terms of consignment’).
• A reserve, once set, cannot be changed upwards except with our consent.
• Where a reserve has been placed, only we may bid on your behalf and only up to the reserve (if any), and you may in no circumstances bid personally.
• Estimates are not Reserves. Estimates are given as a guide to buyers.
6. Electrical items: These are subject to detailed statutory safety controls. Where such items are accepted for sale, you take responsibility for the cost of testing by external contractors. We reserve the right to dispose of unsafe goods as refuse at your expense and without further reference to the vendor. Test fees start at £5 plus V.A.T. per item.
7. Soft furnishings: The sale of soft furnishings is strictly regulated by statute law in the interests of fire safety. Goods found to infringe safety regulations will not be offered and must be removed at your expense. We reserve the right to dispose of unsafe goods as refuse at your cost and without further reference to the vendor. The minimum fee is £20 plus V.A.T. per item.
The rights of disposal referred to in clauses 7 and 8 are subject to the provision of the Torts(Interference with Goods) Act 1977, Schedule 1, a copy of which is available for inspection on request.
8. Descriptions: Please provide accurate Information about the provenance of goods where this is relevant. There is strict liability for the accuracy of descriptions under modern consumer legislation, and in some circumstances, the responsibility lies with sellers if inaccuracies occur. We will assume that you have approved the catalogue description of your lots unless informed to the contrary. Where we are obliged to return the price to the buyer when the lot is a deliberate forgery under Condition 15 of the ‘Conditions of Sale’ and we have accounted to you for the sale proceeds, you agree to reimburse us the sale proceeds. The liability to reimburse the sale proceeds shall not arise where acting reasonably and honestly and are unaware of the forgery, but we are or ought to have been aware of it.
9. Unsold and withdrawn items: If a reserved item is unsold, it will be re-offered (sometimes within seven days and without notice), and the reserve will be lowered by 30% each time of entry. Lots will be re-offered until sold or collected. Where, in our opinion, an item is unsafe, you must promptly collect such items from the saleroom on being informed. Otherwise, storage charges will be incurred. Suppose goods remain with us, and we have no contrary, written advice of your good intentions. In that case, the items will be moved to storage, and reasonable labour charges will be levied and stored at the rate of £2 plus V.A.T. per lot per day for small items and £10 plus V.A.T. per lot per day for furniture and sizeable items. If any item(s) is un-saleable by failing to attract a bid, we will have absolute discretion to dispose of that item and charge for the service. (See Term 8 for specifics and charges).
10. Withdrawn and bought-in items: Once an item has been entered for sale, should you choose to withdraw it (pre or post-sale,) you will incur a charge of 15% plus V.A.T. on being bought-in or withdrawn after being catalogued. This will be based on any reserve set or lower estimate we would apply.
11. Conditions of sale: You agree that all goods will be sold on our ‘Conditions of Sale.’ In particular, you undertake that you have the right to sell the goods either as owner or agent for the owner. You undertake to compensate us and any buyer or third party for all losses, liabilities and expenses incurred in respect of and as a result of any breach of this undertaking.
12. Authority to deduct commission and expenses and retain premium and interest:
(a) You authorise us to deduct commission at the stated rate and all expenses incurred for your account from the hammer price and consent to our right to retain beneficially the premium paid by the buyer by our ‘Conditions of Sale’ and any interest earned on the sale proceeds until the date of settlement.
(b) You authorise us in our discretion to negotiate a sale by private treaty in the case of lots unsold at auction while they remain on our premises, in which case the exact charges will be payable as if such lots had been sold at auction and as far as appropriate these terms apply.
13. Warehousing: We disclaim all liability for goods delivered to our saleroom without sufficient sale instructions and reserve the right to make a minimum warehousing charge of £2 plus V.A.T. per lot per day for small items and £10 plus V.A.T. per day for furniture and oversized items. Unsold lots are subject to the exact charges if you do not remove them within a reasonable time of notification. If not removed within three weeks, we reserve the right to sell them and defray charges from any net sale proceeds or at your expense to consign them to the local authority or in-house skip for disposal.
14. Settlement: After the sale, settlement of the net sum due to you usually occurs after 21 working days unless the buyer has not paid for the goods. No payment will be made in this case, but we will take your instructions in the light of our ‘Conditions of Sale.’
You must note the liability to reimburse the sale proceeds to us under the circumstances provided in Condition 9 above. You authorise any sums owed by you to us on other transactions to be deducted from the sale proceeds. Therefore, you should bear this potential liability before parting with the sale proceeds until the expiry of 28 days from the date of sale.
Loss and Damage of Goods: Elstob & Elstob Limited is not authorised by the F.S.A. to provide insurance to clients and does not do so. However, for its protection, Elstob & Elstob Limited assumes liability for property consigned to it at the lower pre-sale estimate until the hammer falls. The value of the goods to be covered shall be the gross amount realised or, in the case of unsold lots, the best bid, or in the case of goods withdrawn before a sale that which the specialised staff of ours shall in their absolute discretion estimate to be the auction value of such goods.
• We shall not be responsible for damage to, or the loss, theft or destruction of any goods not so insured upon the owner’s written instructions.
• We shall not be responsible for accidental breakage, loss, or damage, howsoever caused, unless directly caused by the negligence of their employees.
• In respect of any article delivered to us, if the vendor has in force a policy or policies of insurance which is specifically mentioned as being insured, whether or not for any agreed sum or value, the vendor shall notify his insurers of and shall himself note our interest as bailee in such policy or policies.
16. Ownership and Indemnity: The vendor declares that the goods entered are their unencumbered property and are free from any hire purchase or financial agreement. The vendor shall indemnify us against any claims concerning any goods sold by us on the vendor’s behalf.
17. Value Added Tax: A vendor who sends for sale by auction any chattel(s) an asset of business must disclose to us whether or not [s]he has a registered V.A.T. number, and thus the number. This information must be supplied to the auctioneer on or before the sale of the goods.
18. Removal costs: Items for sale must be consigned to the saleroom by any stated deadline and at your expense. We may be able to assist you with this process, but any liability incurred to a carrier for haulage charges is solely your responsibility.
19. Clients’ money: You are advised that all clients’ money is held in the following account with HSBC, 1 Prospect Place, Darlington, DL3 7LQ.
Elstob & Elstob Limited Clients Account
Sort Code 40-19-03 Account number 63664872
This is a low-interest-bearing account. The interest will be retained by the auctioneers and is used to reduce bank costs helping us to continue offering competitive selling fees. Cheques under £50 not banked within six months of the issue may be paid to our nominated charity without further notice.
CONDITIONS OF SALE
Elstob & Elstob Limited (Elstob Auctioneers) carries on business with bidders, buyers, and all those present in the auction room before or in connection with a sale on the following General Conditions and on such other terms, conditions and notices as may be referred to herein.
1. Definitions: In these conditions:
• ‘Auctioneer’ means the firm of (Elstob Auctioneers) or its authorised auctioneer, as appropriate.
• ‘Deliberate forgery’ means an imitation made to deceive as to authorship, origin, date, age, period, culture or source but which is unequivocally described in the catalogue as being the work of a particular creator and which at the date of the sale had a value materially less than it would have had if it had been by the description.
• ‘Hammer price’ means the level of bidding reached (at or above any reserve) when the auctioneer brings down the hammer.
• ’Terms of consignment’ means the stipulated terms and rates of commission on which (Elstob Auctioneers) accepts instructions from sellers or their agents.
• ‘Total amount due’ means the hammer price for the lot sold together with any premium, Value Added Tax chargeable, and any additional charges payable by a defaulting buyer under these conditions.
• ‘Sale proceeds’ means the net amount due to the seller, being the hammer price of the lot sold less commission at the stated rate, Value Added Tax chargeable and any other amounts due to us by the seller in whatever capacity and, however, arising.
• ‘You,’ ‘Your,’ etc., refer to the buyer as identified in Condition 2.
• The singular includes the plural and vice versa as appropriate.
2. Bidding procedures and the buyer:
• Bidders must register their particulars before bidding and satisfy security arrangements before entering the auction room to view or bid.
• The maker of the highest bid accepted by the auctioneer conducting the sale shall be the buyer at the hammer price. Any dispute about a bid shall be settled at the auctioneer’s discretion, with or without their clerks’ guidance, by re-offering the lot during the auction or otherwise. The auctioneer shall act reasonably in exercising this discretion and will not accept any formal complaint as an attempt to undermine their absolute authority from the rostrum.
• Bidders shall be deemed to act as principals.
Our right to bid on behalf of the seller is expressly reserved up to the amount of any reserve, and the right to refuse any bid is also reserved. Elstob Auctioneers is not obliged and is unlikely to give a reason for such a decision.
3. Increments: Bidding increments shall be at the auctioneer’s discretion.
4. The purchase price: The buyer shall pay the hammer price together with a premium thereon of 25%. The exact rate applies to lots purchased via our website. If lots purchased ‘Live Webcast’ through the-saleroom.com, invaluable.com or liveauctioneers.com, this would be charged at 30%. Bidders using easyliveauction.com have the choice of a one-off payment of £3 in addition to the buyer’s premium of 25% or 28%. In addition, V.A.T. is payable on this premium
5. Value Added Tax: V.A.T. on the hammer price is imposed by law on all items listed with an asterisk, double asterisk, or marked with a red dot on the lot number. V.A.T. is charged at the appropriate rate prevailing by law at the date of sale and is payable by buyers of relevant lots. (Please refer to ‘Information for buyers’ for a brief explanation of the V.A.T. position).
6. Payment:
(1) Immediately after a lot is sold, you will:
• give to us, if requested, proof of identity, and
• pay us the total amount due in cash or in such other way as agreed.
(2) Any payments by you to us may be applied towards any sums you owe us on any account, whether express or implied, without regard to any directions of you or your agent.
7. Title and Collection of Purchases:
(1) The ownership of any lots purchased shall only pass to you once you have made payment in full to us of the total amount due for all lots on your account. You are responsible for insurance and the risk of all lot purchases at the fall of the hammer.
(2) You shall, at your own risk and expense, collect any lots that you have purchased and paid for not later than four working days following the day of the auction or upon the clearance of any cheque used for payment (if later) after which you shall be responsible for any collection, storage and insurance charges.
(3) No purchase may be collected, and we shall not release any lot to you or your agent until it has been paid for.
8. Remedies for non-payment or failure to collect purchases:
(1) If any lot is not paid for in full and taken away per these conditions or if there is any other breach of these conditions, we, as agents for the seller and on our behalf, shall, at our absolute discretion and without prejudice, to any other rights we may have, be entitled to exercise one or more of the following rights and remedies:
• To proceed against you for damages for breach of contract.
• To rescind the sale of that lot and/or any other lots we sold to you.
• To resell the lot (by auction or private treaty), in which case you shall be responsible for any resulting deficiency in the total amount due (after crediting any part payment and adding any resale costs). Any surplus so arising shall belong to the seller.
• To remove, store and insure the lot at your expense and, in the case of storage, either at our premises or elsewhere.
• To charge interest at a rate not exceeding 5% over the HSBC standard rate on the total amount due to the extent it remains unpaid for more than seven days after the sale.
• To retain that or any other lot sold until you pay the due amount.
• To reject or ignore bids from you or your agent at future auctions or to impose conditions before such bids are accepted.
• To apply any proceeds of the sale of other lots due or in future becoming due to you towards the settlement of the total amount due and to exercise a lien (that is, a right to retain possession of) any of your property in our control for any purpose until the debt unpaid is satisfied.
(2) We shall, as agents for the seller and on our behalf, pursue these rights and
remedies only as far as is reasonable to make appropriate recovery regarding breach of these conditions.
9. Third-party liability: All public members on our premises are at their own risk and must note the accommodation layout and security arrangements. Accordingly, neither the auctioneer nor our employees or agents shall incur liability for death or personal injury (except as required by law because of our negligence) or similarly for the safety of the property of persons visiting before or at a sale.
10. Commission bids: Whilst prospective buyers are strongly advised to attend the auction and are always responsible for any decision to bid for a particular lot and shall be assumed to have carefully inspected and satisfied themselves as to its condition, we will, if so instructed clearly and in writing execute bids on their behalf. Neither the auctioneer nor our employees or agents shall be responsible for any failure to do so, except where such failure is unreasonable. Where two or more commission bids at the same level are recorded, we reserve our absolute discretion to prefer the first bid so made.
11. Warranty of title and availability: The seller warrants to the auctioneer and you that the seller is the valid owner of the property consigned or is properly authorised by the valid owner to consign it for sale and can transfer good and marketable title to the property free from any third party claims.
12. Agency: The auctioneer usually acts as an agent only and disclaims any responsibility for seller or buyer defaults.
13. Terms of sale: The seller acknowledges that lots are sold subject to the stipulations of these conditions in their entirety and on the ‘Terms of consignment’ as notified to the consignor at the time of the entry of the lot.
14. Descriptions and conditions:
• Whilst we seek to describe lots accurately, it may be impractical for us to carry out exhaustive due diligence on each lot. Prospective buyers are given many opportunities to view and inspect before any sale. They (and any independent experts on their behalf) must satisfy themselves as to the accuracy of any description applied to a lot. Prospective buyers also bid on the understanding that, inevitably, representations or statements by us as to authorship, genuineness, origin, date, age, provenance, condition, or estimated selling price involve matters of opinion. We undertake that any such opinion shall be honestly and reasonably held and accept liability for opinions given negligently or fraudulently. Subject to the preceding, neither we, the auctioneer, our employees, agents, nor the seller accept liability for the correctness of such opinions and all conditions and warranties, whether relating to description, condition or quality of lots, express, implied or statutory, are at this moment excluded. This condition is subject to the following condition concerning deliberate forgeries and applies to save as provided in paragraph 6 ‘ Information to buyers.
• Private treaty sales made under these conditions are deemed sales by auction for purposes of consumer legislation.
To clarify, live webcast auctions are NOT sales governed by Distance Selling Regulations – you were allowed to view them, even if you did not. Therefore Post & Packing or other claims for so-called ‘consequential losses’ are expressly excluded as an express term.
15. Forgeries: Notwithstanding the preceding condition, any lot which proves to be a deliberate forgery (as defined) may be returned to us by you within 21 days of the auction (not collection), provided it is in the same condition as when bought and is accompanied by particulars identifying it from the relevant catalogue description and a written statement of defects and FACTUAL EVIDENCE, not just a chosen ‘Opinion’. If we are satisfied with the evidence presented that the lot is a deliberate forgery, we shall refund the money paid by you for the lot, including any buyer’s premium, provided that
(1) if the catalogue description reflected the accepted view of scholars and experts as at the date of sale or
(2) If you cannot transfer a good and marketable title to us, you shall have no rights under this condition.
The right of return provided by this condition is additional to any right or remedy provided by law or by these ‘Conditions of sale.’
To clarify, live webcast auctions are NOT sales governed by Distance Selling Regulations – you were allowed to view them, even if you did not. Therefore Post & Packing or other claims for so-called ‘consequential losses’ are expressly excluded as an express term.
16. Insurance: An implied term of auction sales is that the buyer assumes full responsibility for every lot at the fall of the hammer. This is the point at which the liability of the vendor and auctioneer ceases.
17. Complaints & Disputes: One of the essential implied terms of auction sales is that the auctioneer and/or their clerk has the right to split or consolidate lots and to accept, refuse & regulate the bidding. In all matters of dispute, the auctioneers will be the sole arbitrator, and their decision will be final. There cannot be any further process beyond that decision.
General:
18. We shall have the right to refuse admission to our premises or attendance at our auctions by any person. Elstob Auctioneers is not obliged and is unlikely to give a reason for such a decision.
19. (1) Any right to compensation for losses, liabilities and expenses incurred in respect of and as a result of any breach of these conditions and any exclusions provided by them shall be available to the seller and/or the auctioneer as appropriate.
(2) Such rights and exclusions shall extend to and be deemed for the benefit of employees and agents of the seller and/or the auctioneer who may enforce them.
20. Any notice to any buyer, seller, bidder or viewer may be given by first class mail or Swift mail, wherein it shall be deemed to have been received by the addressee 48 hours after posting.
21. Special terms may be used in catalogue descriptions of particular classes of items. In this case, the descriptions must be interpreted by any glossary appearing at the commencement of the catalogue.
22. Any indulgence extended to bidders, buyers or sellers by us notwithstanding the strict terms of these conditions or the ‘Terms of consignment’ shall affect the position at the relevant time only and in respect of that particular concession only; in all other respects, these conditions shall be construed as having full force and effect.
23. In line with the new GDPR, anyone can ask how their Information is stored and kept safe. We have set motions to ensure all requests are handled within 14 working days of receipt. As covered by the terms and conditions, a charge of £30+VAT will be payable if the request is deemed manifestly unfound or excessive. If the request is repetitive, the request will be responded to with a refusal for the Information.
24. English law applies to the interpretation of these conditions.
GLOSSARY OF CATALOGUING TERMINOLOGY
Precious Metals
The weights applied to descriptions of platinum, gold, silver, and other precious metals are approximate guides from the most basic equipment, which is not approved for ‘Use-in-Trade.’ All lots are sold as objects and not as ‘Value-by-Weight’, so these are sufficient for the auction sale.
Gemstones and Jewels
Many coloured gemstones have been subjected to various treatments designed to enhance their appearance; for example, heating is extensively used to improve colour or transparency in rubies and sapphires. Other treatments, such as oiling, enhance the clarity of emeralds. Other coloured gemstones may have undergone permanent or semi-permanent treatments such as dyeing, irradiation, coating and impregnation, which may require further re-treatment to retain their appearance. The jewellery trade generally accepts these treatments. Prospective purchasers should assume all gemstones will have been treated unless statements are made to the contrary.
Recent technological advancements have led to some diamonds being treated in various ways designed to enhance their appearance. These treatments can include fracture filling, laser drilling, irradiation and coating. Every effort is made to identify such treatments; however, Elstob & Elstob can’t guarantee that all lots containing diamonds are free of these enhancements.
All dimensions and estimated weights of gemstones have been determined without unsetting the stones and are, therefore, only approximate because of limitations imposed by the mount. Estimated weights are usually calculated by applying standard formulae to the measurements using the most basic equipment.
Books and Printed Matter
These items are not sold subject to collation and are not returnable once removed from the premises.
Paintings, Drawings and Sculpture
Any statement to authorship, attribution, origin, date, age, provenance and condition is a statement or opinion and is not to be taken as a statement or representation of fact. Elstob & Elstob reserve the right, in forming their opinion, to consult and rely upon any expert or authority considered by them to be dependable.
In our opinion, a picture catalogued with the painter’s forename(s) and surname is a work by that artist, e.g. Joseph Mallord William Turner. When an artist’s forename(s) is not known, a series of asterisks followed by the artist’s surname, whether preceded by an initial or not, indicates that, in our opinion, the work is by the artist.
1. Attributed to.... is, in our opinion, probably by the artist.
2. Studio of.... is, in our opinion, a work from the artist’s studio that may or may not have been executed under his direction.
3. Circle of.... is, in our opinion, a work of the artist’s period executed under his immediate influence.
4. Follower of.... is, 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.... is, in our opinion, a work in a style related to that of the artist but of a later date.
6. School…. In our opinion, the picture was executed at that time and in that location.
7. After.... is, in our opinion, a copy of any date after a work by that artist.
8. 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.
9. erm Bears signature and/or dated and/or inscription means that, in our opinion, the artist’s name and/or date and/or inscription have been added by another hand.
10. All references to signatures, inscriptions, and dates refer to the present state of the work.
11. Dimensions are given height before width.
The Artists Resale Right (A.R.R.) or Droit de Suite
In a description, A.R.R. warns the buyer that an extra charge will be payable.
Following the U.K. implementation of the E.U. Artist’s Resale Right directive in February 2006 and the Derogation for Deceased Artists in January 2012, living artists and the heirs of those that died less than 70 years ago may receive a fraction of a resale royalty that is payable by you.
The payment is calculated on qualifying works of art which are sold for more than EUR 1,000. The Artist’s Resale Right Service Hub will calculate the qualifying threshold based on the European Central Bank reference rate published at 2.15 pm on the day of the sale and can be found somewhere on https://dacs.org.uk.
The royalty charge will apply if the hammer price exceeds U.K. sterling, equivalent to EUR 1,000. The royalty will be added to the buyer invoice and must be paid before items can be released.
Auctioneers retain no handling costs or additional fees despite doing all the extra pre- and post-sale administration work. When we have done the unremunerated job for self-described ‘not-for-profit’ collecting societies, we send them the sum from which they will extract their administration fees. Anything left over may go to benefit the artist or their family.
A portion of the hammer price (Euro’s E.U.R.) Royalty Rate
1000 to 50,000 4%
50,000.01 to 200,000 3%
200,000.01 to 350,000 1%
350,000.01 to 500,000 0.5%
Exceeding 500,000 0.25%
V.A.T. is not payable on this royalty charge. The maximum royalty charge is 12,500 EUR.
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