(2) INFORMATION FOR BUYERS AT AUCTIONS
1. Introduction. The following notes are intended to assist bidders and buyers, particularly those that are inexperienced or new to our salerooms. All of our auctions are governed by our Conditions of Business incorporating the Terms of Consignment (primarily applicable to sellers), the Terms of Sale (primarily applicable to bidders and buyers) and any notices that are displayed in our salerooms or announced by the auctioneer at the auction. Our Conditions of Business are available for inspection at our salerooms and the Terms of Sale are printed in our auction catalogues. Our staff will be happy to help you if there is anything in our Conditions of Business that you do not fully understand.
Please make sure that you read our Terms of Sale set out in this catalogue or on our website carefully before bidding in the auction. If your bid is successful, you will be obliged to comply with our Terms of Sale.
2. Agency. As auctioneers we usually act on behalf of the seller whose identity, for reasons of confidentiality, is not normally disclosed. If you buy at auction your contract for the goods is with the seller, not with us as auctioneer.
3. Estimates. Estimates are designed to help you gauge what sort of sum might be involved for the purchase of a particular lot. Estimates may change and should not be thought of as the sale price. The lower estimate may represent the reserve price (the minimum price for which a lot may be sold) and will not be below the reserve price. Estimates do not include the buyer’s premium or VAT (where chargeable). Estimates are prepared some time before the auction and may be altered by a saleroom notice or announcement by the auctioneer before the auction of the lot. They are not definitive.
4. Buyer’s Premium. The Terms of Sale oblige you to pay a buyer’s premium at 17 1/2% on the hammer price of each lot purchased. In addition VAT is added to this premium (see below).
Artists Re-Sale Right. Buyers of the re-sold art of living artists and those deceased up to 70 years before sale date will be charged the royalty where applicable. Currently this is 4% on any items sold at 1000 Euros or over, diminishing above 50,000 Euros. VAT is not applicable. Further details can be obtained from our office.
5. VAT. Items in our catalogue may be marked in the following ways:
a. (*) indicates that VAT is payable on the hammer price as well as being an element in the buyer’s premium. VAT will be chargeable at the standard rate (presently 20%). This imposition of VAT is likely to be because the seller is registered for VAT within the European Union and is not operating the Dealers Margin Scheme or because VAT is due at 20% on importation into the UK.
b. (**) indicates that the lot has been imported from outside the European Union. (These lots are liable to a reduced rate of VAT (5%) on the hammer price and buyer’s premium).
c. Lots which do not have either of the above symbols have no VAT payable on the hammer price. This is because such lots are sold using the Auctioneers’ Margin Scheme. The VAT included within the premium is not recoverable as input tax.
6. Inspection of goods by the buyer. As we act on behalf of the seller, we are dependent on information provided by the seller about their goods. We may inspect lots and will act reasonably in taking a general view about them. However, we are normally unable to carry out detailed examinations of lots to check their condition in a way a buyer would do. You will have ample opportunity to inspect the goods. You must inspect and investigate lots that you might wish to bid for. Please note carefully the exclusion of liability for the condition of lots set out in the Terms of Sale at Clause 12.4.
7. Electrical Goods. These are sold as “antiques” only. If you buy electrical goods for use you must ask a qualified electrician to check them for compliance with safety regulations before you use them.
8. Export of Goods. If you intend to export goods you must find out:
a. whether an export licence is needed; and
b. if there is a prohibition on importing goods of that character e.g. because the goods contain prohibited materials such as ivory
9. Bidding. Bidders will be required to register with us before the auction starts. We reserve the right to impose a deadline prior to the auction by which you must register or by which we must receive a commission bid. If you wish to bid on high value lots this deadline may be several days before the auction in order to allow us sufficient time to carry out the necessary checks. Lots will be invoiced to the name and address on the registration form. You will need to provide us with proof of your identity in a form acceptable to us and such other information as we may require. Please enquire in advance about our arrangements for telephone or online bidding. Telephone lines are available on lots where the current lower estimate is £500 or over, and can only be arranged up to 5pm the day before sale day. Phone bidders should be prepared to bid at least the bottom estimate. Please note that we may refuse to register you if you do not provide us with all the information and documentation that we ask for at our discretion.
10. Commission Bidding. You may leave commission bids with us indicating the maximum amount to be bid against a lot (excluding the buyers’ premium and/or any applicable VAT). We will execute commission bids as cheaply as possible having regard to the reserve (if any) and competing bids. If the buyers submit identical commission bids we will use the first bid received (where this can be reasonably ascertained). Please enquiry in advance about our arrangements for the leaving of commission bids by telephone or fax/email or via our website or online bidding platform, which must be with us no later than 30 minutes before the start of the sale session.
11. Methods of Payment. Usually any cheques will need to be cleared before you can take the goods away. Please discuss with our office in advance of the sale if you plan to use other methods of payment (except cash for which there is an upper limit of 15,000 euros equivalent). Credit and debit card payments may be made in person and payments can also be made directly into our bank account.
12. Collection and Storage. Please note what the Terms of Sale say about collection and storage. It is important that you pay for and collect goods promptly and in any event NO LATER THAN TWO WORKING DAYS AFTER THE SALE. Any delay may involve you having to pay storage charges.
TERMS OF CONSIGNMENT FOR SELLERS
Both the sale of goods at our auction and your relationship with us are governed by the Terms of Consignment (primarily applicable to sellers), the Terms of Sale (primarily applicable to bidders and buyers) and any notices displayed in the saleroom or announced by us at the auction (collectively, the “Conditions of Business”). The Terms of Consignment and Terms of Sale are available at our saleroom on request.
Please read these Terms of Consignment carefully. Please note that if you (or another person acting on your behalf) provide goods to us to sell on your behalf at auction, this signifies that you agree to and will comply with these Terms of Consignment.
Please note that these Terms of Consignment relate to auctions held at our premises only. We have separate terms for online only auctions.
1 Definitions and interpretation
1.1 To make these Terms of Consignment easier to read, we have given the following words a specific meaning:
“Auctioneer” means Hartleys Fine Arts Ltd, a company registered in England and Wales with registration
number .... and whose registered office is located at Victoria Hall, Little Lane, Ilkley, LS29 8EA or its
authorised auctioneer, as appropriate;
“Bidder” means a person who placed a bid for Goods at our auction;
“Buyer” means the person who makes the highest bid for the Goods accepted by the Auctioneer;
“Commission” means the commission that we charge you on the sale of the Goods as set out in Clause 5
“Consumer” means an individual acting for purposes which are wholly or mainly outside that
individual’s trade, business, craft or profession;
“Consumer Contracts Regulations” means the Consumer Contracts (Information, Cancellation and
Additional Charges) Regulations 2013;
“Deliberate Forgery” means: (a) an imitation made with the intention of deceiving as to
authorship, origin, date, age, period, culture or source; (b) which is described in the catalogue as being
the work of a particular creator without qualification; and (c) which at the date of the auction had a
value materially less than it would have had if it had been as described;
“FCA” means the Financial Conduct Authority;“Goods” means the goods that you consign to us for sale at our auction;
“Hammer Price” means the level of the highest bid for the Goods accepted by the Auctioneer by the fall
of the hammer;
“Premium” means the premium charged to the Buyer on the sale of the Goods in accordance with the
Terms of Sale;
“Price” means the total of the Hammer Price, Premium and any applicable VAT;
“Proceeds” means the Price less the Commission, the Premium, any expenses incurred to your account
and any applicable VAT;
“Reserve” means the minimum price at which the Goods may be sold;
“Seller” means the owner of the Goods and any agent who consigns the Goods for sale on the owner’s
behalf (if applicable);
“Terms of Consignment” means these terms of consignment;
“Terms of Sale” means the terms of sale for bidders or buyers at our auctions;
“Trader” means a Seller who is acting for purposes relating to that Seller’s trade, business, craft or
profession, whether acting personally or through another person acting in the trader’s name or on the
trader’s behalf (such as an agent and/or the Auctioneer);
“VAT” means any value added tax or equivalent sales tax; and
“Website” means our website available at www.hartleysauctions.co.uk
In these Terms of Consignment the words “you”, “yours”, etc. refer to the Seller. The words “we”, “us”,
etc. refer to the Auctioneer. If the consignment of Goods to us is made by an agent we assume that you
(as owner of the Goods) have authorised the consignment and authorised the agent to contract on your
behalf. All obligations that apply to the Seller under these Terms of Consignment shall apply to the
owner of the Goods and their agent, jointly and separately. Any reference to a “Clause” is to a clause of
these Terms of Consignment unless stated otherwise.
2 Information that we are required to give to Consumers
2.1 A description of the main characteristics of the auction-related services that we are providing to you as set out in these Terms of Consignment or otherwise agreed with you in writing.
2.2 Our name, address and contact details as set out in these Terms of Consignment and/or on our Website.
2.3 The rate at which we will charge you the Commission plus any applicable VAT on the sale of the Goods as set out in Clause 5.
2.4 The fee that we will charge you plus any applicable VAT as set out in Clause 18 if either the Goods are unsold at auction or the Goods are withdrawn by you from the auction after the Goods have been catalogued and/or marketed by us prior to the auction in any way.
2.5 The arrangements for collection of any unsold Goods as set out in Clauses 18 and 20 and terms regarding payment of any Proceeds due to you set out in Clause 17.
2.6 If you have any complaints, please get in contact with us using the contact details set out on our website. A copy of our Complaints Handling Procedure is available.
3. Procedure for consigning Goods for sale at auction
3.1 If you consign Goods to us for sale at auction, you will need to provide us with the following information about you, in a form acceptable to us:
3.1.1. Your legal name and proof of identity
3.1.2 Information about the Goods (as set out in Clause 12)
3.1.3 Your bank account details
3.1.4 Your address and contact details
3.1.5 Your VAT registration number (if applicable)
3.1.6 Your confirmation of whether you are selling the Goods as a Trade or a Consumer
3.2 If you do not provide us with, or we are not satisfied with any of the above information, we may refuse to accept consignment of your Goods for sale in our auction.
3.3 You must provide the Goods to us by any stated deadline (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.
4. The contract between you and the Buyer
4.1 The contract between you and the Buyer will be formed when the hammer falls accepting the highest bid for the Goods at the auction.
4.2 You may directly enforce any terms in the Terms of Sale against a Buyer and/or a Bidder to the extent that you have suffered damages and/or loss as a result of the Buyer and/or the Bidder’s breach of the Terms of Sale.
4.3 If you breach these Terms of Consignment, you may be responsible for damages and/or losses suffered by a Buyer, Bidder and/or by us. If we are contacted by a Buyer and/or a Bidder who wishes to bring a claim against you, we may in our discretion provide the Buyer and/or Bidder with information or assistance in relation to that claim.
4.4 We normally act as an agent only and will not have any responsibility for default by you or the Buyer.
We will charge you a commission on the sale of the Goods calculated as a percentage of the
hammer price as follows:-
15% on the price of individual lots up to £1000, 12 ½ % on the price of individual lots from £1001 to £10,000, and 7 ½ % on the price of individual lots over £10,000, subject to a minimum charge per sale of £15. All charges are subject to VAT at the current rate.
6. Specialist Sale Photographs
You will pay for the cost of any photographs of your goods produced for the auction. Charges will be £5 per lot for internet illustrations, and an additional £5 for including in the printed catalogue as part of a group (or an additional £15 as an individual photograph). We reserve the right to photograph all goods unless you specifically instruct us not to. The copyright in such photographs will be owned by us along with the text of the auction catalogue.
7. Loss and Damage of Goods
7.1 We will without charge hold all goods on our premises until title passes to the buyer, covered against all risks at the agreed auction sale reserve price. If this has not been agreed, we will use our lower estimate of the sale price. In the event of any dispute over this figure, this will be fixed independently by a member of The Society of Fine Arts Auctioneers. Whilst in no way is it our intention to supply any kind of insurance service to you, our own insurance is intended to assist in ensuring that your rights to your property whilst in our custody are safeguarded.
7.2 The liability accepted by us in Clause 7.1 does not include any liability for loss or damage to the Goods that is caused by or results from: (i) any inherent vice or defect affecting the Goods; (ii) acts of God, flood, drought, earthquake or other natural disaster; (iii) acts of terrorism, civil commotion, riots or war; or (iv) nuclear, chemical or biological contamination.
7.3 If you (or your agent) instruct us in writing not to assume liability for Goods, the Goods remain entirely at your risk unless and until the Goods pass to the Buyer or are collected by you or on your behalf.
8. Minimum Bids and our Discretion
Goods will normally be offered subject to a Reserve agreed between you and us before the auction in accordance with Clause 9. We may sell Goods below the Reserve provided that we account to you for the same sale proceeds as you would have received had the Reserve been the Hammer Price. We will however use a “discretion” of up to 10% to effect a sale unless you instruct us that the Reserve is Fixed.
9.1 Reserves must be reasonable and may not exceed our lower pre-sale estimate for the lot. We may decline to offer Goods which, in our opinion, would be subject to an unreasonably high reserve (in which case the Goods carry the storage and insurance charges set out in these Terms of Consignment).
9.2 Once we have agreed a Reserve, this cannot be changed except with your and our consent.
9.3 Where a Reserve has been agreed only we may bid on your behalf and only up to one bid below the Reserve (if any) and you may in no circumstances bid personally or ask anyone else to bid on your behalf.
10. Electrical Items
10.1 You must test any electrical items that you wish to consign to us for sale using external contractors. We will not accept any Goods that are not certified as safe by an electrician (unless they are antiques).
10.2 If we notify you that we will not accept uncertified electrical Goods, you must remove such Goods promptly at your expense following such notification. If you do not collect the Goods within seven days of our written notice to do so, we may dispose of the Goods at your expense.
11. Upholstered Goods
Upholstered Goods of any kind are now controlled by regulation. Items manufactured after 1950 must bear approved manufacturers labels relating to flammability. These labels only appear from March 1990. Items without labels cannot be offered. Pre-1950 items are exempt, and thus, subject to their condition are saleable. We reserve the right to dispose of unsafe/unsaleable goods as refuse, at your expense.
12. Warranties and information about the Goods
12.1 You must provide us with all information that you have relating to the provenance, export/import history, condition, attribution and authenticity of the Goods (any any additional information that may be relevant).
12.2 In addition to any warranties implied by law, you warrant to us and the Buyer that:
12.2.1 any information that you provide in relation to the Goods is complete, correct and up-to-date;
12.2.2 the Goods will match any description of the Goods that you provide to us;
12.2.3 as far as you are aware, the main characteristics of the Goods set out in the auction catalogue (as amended by any notice displayed in the saleroom or announced by us at the auction) are correct;
12.2.4 to the best of your knowledge, the Goods have been lawfully imported and lawfully and permanently exported as required by the laws of any country in which the Goods were located; required declarations upon the export and import of the Goods have been properly made; and any duties and taxes on the export and import of the Goods have been paid, and
12.2.5 you will pay all taxes and duties potentially due on the sale of the Goods.
12.3 You must let us know promptly, and in any event before the auction, if you find out that any of the information you have provided to us relating to the Goods is incorrect or incomplete and/or if the Goods do not match the description that you provided to us or the main characteristics of the Goods set out in the auction catalogue.
12.4 Any information that you provide in relation to the Goods may form part of the contract between both of us and the Buyer and you acknowledge that the Buyer may have a statutory right to reject the Goods if the information provided is incorrect.
12.5 If we have to refund the price of any Goods to the Buyer due to the Goods being a Deliberate Forgery, you must promptly, and in any event within seven days reimburse to us any Proceeds that we have transferred to you for those Goods following receipt of our written notice requesting you to do so.
13 Transfer of ownership of the Goods
You warrant and undertake to us and the Buyer that you are the true owner of the Goods (or are properly authorised by the true owner to sell the Goods on the owner’s behalf) and you currently have the right to sell the Goods to the Buyer with good and marketable title free of any third party rights or claims at the time when ownership of the Goods is to be transferred.
You will indemnify and keep us fully indemnified against any and all liability, loss, damage, costs (including reasonable legal fees and any VAT in relation to such fees) and expenses which we may incur or suffer as a result of any breach of Clause 12 or 13 by you or anyone acting on your behalf, including without limitation, if we are required to refund the price of any Goods to the Buyer as a result of your breach of these clauses.
15. Terms of Sale
You agree that the Goods will be sold to the Buyer in accordance with our Terms of Sale, a copy of which will be displayed in the saleroom and printed in our auction catalogue.
16. Authority to deduct commission and expenses and retain premium and interest
You authorise us to deduct our Commission at the stated rate and all expenses incurred on your account from the Hammer Price, plus any applicable VAT. You consent to our right to charge the Buyer and retain beneficially the Premium plus any applicable VAT paid by the Buyer in accordance with our Terms of Sale and any interest earned on the sale proceeds until the date of settlement.
17.1 Provided that the Buyer has paid for the Goods, we will usually pay the net sum due to you within seven working days of the last day of the auction (General Sales) and fourteen working days (all other sales) by Bacs payment. Prior to settlement to you, all monies will be held in our clients account at NatWest PLC, Ilkley, sort code 53-61-23.
17.2 If the buyer has not paid for the Goods, we will not submit payment to you. In this case no settlement will be made. We will however discuss with you the rights that we may exercise under Clause 9 of our Terms of Sale in relation to a Buyer’s failure to pay. We will not release the Goods to the Buyer until we have received payment in full of the Price for the Goods.
17.3 You must notify us in writing if your bank account details change. We will not be responsible for
any payments made to the incorrect bank account if this is because you have not provided us with the correct bank details.
17.4 If we make payments to your bank account in error, we may request reimbursement by sending you an invoice.
17.5 We may deduct any sums that you owe to us from the Proceeds.
18. Unsold and withdrawn items
18.1 If the Goods are unsold at auction, you authorise us to negotiate a sale by private treaty not later than the close of business two days following the last day of the auction. In this case you will pay to us the same charges as if such Goods had been sold at auction and, so far as appropriate, these Terms Consignment will apply to any such sale.
18.2 In addition to Clause 18.1, we may, with your consent, re-offer unsold Goods at a future auction (or by private treaty thereafter as set out in Clause 18.1 above) but we may recommend a variation in estimates or Reserve. Where, in our opinion, Goods are unsaleable, we will notify you and you must collect such Goods from the saleroom within seven days of the date of our notice to do so. If you fail to collect such Goods promptly, we may charge you reasonable storage charges at a daily rate.
18.3 You will pay us a charge of 10% of the Reserve/lower estimate for the lot plus any photography or other charges outstanding and VAT on any Goods that are withdrawn from the auction after being catalogued and/or marketed by us prior to the auction in any way.
19. Withdrawal of the Goods by us
19.1 We may (acting reasonably) at our discretion at any time withdraw your Goods from our auction.
19.1.1 for legal, reputational or operational reasons (including if you fail to provide evidence to verify your identity or your title to the Goods to our satisfaction);
19.1.2 if we reasonably believe that you may be, in breach of these Terms of Consignment; or
19.1.3 if we reasonably believe the Goods to be a deliberate Forgery.
20.1 We have no liability for Goods that you deliver to our saleroom without sufficient sale instructions. We reserve the right to charge you a minimum warehousing charge of £1 per lot per day plus any applicable VAT.
20.2 We will notify you to ask you to remove any of your unsold or withdrawn Goods. Unsold and Withdrawn Goods will be subject to the charges set out in Clause 20.1 above if you do not remove them within 7 days of the date of our notification requesting you to do so.
20.3 If you do not remove your unsold or withdrawn Goods within 14 days of the date of our notification we may either: (a) sell such Goods and set off charges from any net proceeds of sale; or (b) at your expense dispose of such Goods.
21. Our Liability to you
21.1 We will not be liable to you for any loss of opportunity or disappointment suffered as a result of participating in our auction.
21.2 In addition, neither we nor the Buyer shall be responsible to you and you shall not be responsible to the Buyer or us for any loss or damage that any of us suffer that is not a foreseeable result of any of us not complying with the Conditions of Business. Loss or damage is foreseeable if it is obvious that it will happen or if at the time of the sale of the Lot, we, you and the Seller knew it might happen.
21.3 Subject to Clause 21.4, if we are found to be liable to you for any reason (including, amongst others, if we are found to be negligent, in breach of contract or to have made a misrepresentation), our liability will be limited to the Proceeds due for the Goods if sold or the Reserve if unsold.
21.4 Notwithstanding the above, nothing in these Terms of Consignment limits the liability of us or our employees or agents for:
21.4.1 death or personal injury resulting from negligence (as defined in the Unfair Contract Terms Act 1977);
21.4.2 fraudulent misrepresentation; or
21.4.3 any liability which cannot be excluded by law.
22.1 All notices between you and us regarding these Terms of Consignment must be in writing and signed by or on behalf of the party giving it.
22.2 Any notice referred in Clause 22.1 may be given:
22.2.1 by delivering it by hand
22.2.2 by first class pre-paid or Recorded Delivery; or
22.2.3 by email, provided that a copy is also sent by pre-paid post or Recorded Delivery.
22.3 Notices must be sent:
22.3.1 by hand or registered post
a) to us, at our address set out in these Terms of Consignment or at our registered office address appearing on our Website; and
b) to you, at the last postal address that you have given to us as your contact address in writing:
22.3.2 by email:
a) to us, by sending the notice to the following email address: firstname.lastname@example.org
b) to you, by sending the notice to any email address that you have given to us as your contact email address in writing.
22.4 Notices will be deemed to have been received:
22.4.1 if delivered by hand, on the day of delivery; or
22.4.2 if sent by first class pre-paid or Recorded Delivery, two business days after posting, exclusive of the day of posting; or
22.4.3 if sent by email, at the time of transmission unless sent after 17.00 in the place of receipt in which case they will be deemed to have been received on the next business day in the place of receipt (provided that a copy has also been sent by pre-paid post or Recorded Delivery as set out in Clause 22.2.3)
22.5 Any notice of communication given under these Terms of Consignment will not be validly given if sent by fax, any form of messaging via social media or text message.
23. Data Protection
We will hold and process any personal data in relation to you in accordance with our current private policy, a copy of which is available on request
24.1 Each of the clauses of these Terms of Consignment operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining clauses will remain in full force and effect.
24.2 We may change these Terms of Consignment from time to time, without notice to you. Please read these Terms of Consignment carefully, as they may be different from the last time you read them.
24.3 Except as otherwise stated in these Terms of Consignment, each of our rights and remedies: (a) are in addition to and not exclusive of any other rights or remedies under these Terms of Consignment or general law; and (b) may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under these Terms of Consignment is not a waiver of that or any other right. Partial exercise of any right under these Terms of Consignment will not preclude any further or other exercise of that right or any other right under these Terms of Consignment. Waiver of a breach of any term of these Terms of Consignment will not operate as a waiver of breach of any other term or any subsequent breach of that term.
24.4 These Terms of Consignment are between you and us. No person other than you, the Buyer or us will have any rights to enforce any of these Terms of Consignment.
24.5 These Terms of Consignment and any dispute or claim arising out of or in connection with them (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.