Terms of Public Auction Hamburg
Ketterer Kunst GmbH Hamburg
1.1 Ketterer Kunst GmbH seated in Hamburg (hereinafter referred to as “auctioneer”) sells by auction basically as a commission agent in its own name and for the account of the consignor (hereinafter referred to as "principal”), who is not identified. The items possessed by the auctioneer (own property) are listed separately in the owner’s register of the respective catalog; these Terms of Public Auction shall also apply to the auctioning off of such own property; in particular, the surcharge must also be paid for this (see Item 5 below).
1.2 The auction shall be conducted in the name and for the account of the auctioneer by an individual having an electioneering license; the auctioneer shall select this person. The auctioneer is entitled to appoint suitable representatives for the execution of the auction in accordance with § 47 GewO (German Industrial Code). Any claims arising out of and in connection with the auction may be asserted only against the auctioneer.
1.3 The auctioneer reserves the right to combine any catalog numbers, to separate them, to call them in an order other than the one envisaged in the catalog or to withdraw them.
1.4 All objects for auction can be observed at the auctioneer's prior to the auction. This also accounts for auction in which bidders may participate online (so-called live auction). Place and time can be learned from the respective announcement on the auctioneer's website. In case a bidder (particularly bidders in live auctions) misses the viewing before the beginning of the auction due to lack of time, his abstains from his right to viewing with his participation in the bidding.
2. Calling/course of the auction/acceptance of a bid
2.1 Calling shall basically begin at two thirds of the estimated price unless higher written bids have already been submitted or unless the auctioneer has agreed upon a minimum hammer price (limit) of more then two third of the estimated price with the principal. The bidding steps shall be at the auctioneer’s discretion; in general, the bid shall be raised by 10 % of the minimum price called.
2.2 The auctioneer may reject a bid especially if a bidder, who is not known to the auctioneer or with whom there is no business relation as yet, does not furnish security before the auction begins. Even if security is furnished, any claim to acceptance of a bid shall be unenforceable.
2.3 If a bidder wishes to bid in the name of another person, he must inform the auctioneer about this before the auction begins by giving the name and address of the person being represented, additionally a written certificate of authority of representation is required. If participating as live bidder or as bidder in a live auction (cf. definition in section 1.4) a representation is only possible if the certificate of authority of representation has been presented to the auctioneer at least 24 hours prior to the auction (= first call) in written form. Failing this, the representative is liable for the bid as if it had been submitted in his own name, the auctioneer can either insist on performance or claim damages.
2.4 Apart from being rejected by the auctioneer, a bid shall lapse if the auction is closed without the bid being knocked down or if the auctioneer calls the item once again; a bid shall not lapse on account of a higher invalid bid made subsequently.
2.5 The following shall additionally apply for written bids: these must be received no later than the day of the auction and must specify the item, listing its catalog number and the price bid for it, which shall be regarded as the hammer price not including the surcharge and the turnover tax; any ambiguities or inaccuracies shall be to the bidder’s detriment. Should the description of the item being sold by auction not correspond to the stated catalog number, the catalog number shall be decisive to determine the content of the bid. The auctioneer shall not be obligated to inform the bidder that his bid is not being considered. The auctioneer shall charge each bid only up to the sum necessary to top other bids.
2.6 A bid is accepted if there is no higher bid after three calls. Notwithstanding the possibility of refusing to accept the bid, the auctioneer may accept the bid with reserve; this shall apply especially if the minimum hammer price specified by the principal is not reached. In this case the bid shall lapse within a period of 4 weeks from the date of its acceptance unless the auctioneer notifies the bidder about unreserved acceptance of the bid within this period.
2.7 If there are several bidders with the same bid, the auctioneer may accept the bid of a particular bidder at his discretion or draw lots to decide acceptance. If the auctioneer has overlooked a higher bid or if there are doubts concerning the acceptance of a bid, he may choose to accept the bid once again in favor of a particular bidder before the close of the auction or call the item once again; any preceding acceptance of a bid shall be invalid in such cases.
2.8 Acceptance of a bid makes acceptance of the item and payment obligatory.
3. Special terms for written bids, bids in the text form and via the internet, participation in live auctions, post-auction sale
3.1 The auctioneer shall strive to ensure that he takes into consideration bids by bidders who are not present at the auction, whether such bids are written bids, bids in the text form, bids via the internet or by telephone and received by him only on the day of the auction. However, the bidder shall not be permitted to derive any claims whatsoever if the auctioneer no longer takes these bids into consideration at the auction, regardless of his reasons.
3.2 On principle, all absentee bids according to the above item, even if such bids are received 24 hours before the auction begins, shall be legally treated on a par with bids received in the auction hall. The auctioneer shall however not assume any liability in this respect.
3.3 Even with the best available technology it is generally not possible to develop and maintain soft- and hardware absolutely free of errors. The same applies to the 100% exclusion of troubles and disturbances in internet and telephone communication. Accordingly, the auctioneer can not guarantee or be held liable for a permanent and failure-free availability and usability of the website, the internet- and the telephone connection, given he has not caused the disturbance himself. Standard of liability specified in section 10 of these terms and conditions shall be decisive. In turn, under these presuppositions the contractor does not assume liability that, for disturbances specified above bids that without disturbances would have led to a conclusion of contract, can only be submitted incomplete or with delay. The auctioneer is not liable for any the bidders incurred expenses on reason of these disturbances.
The auctioneer will make justifiable efforts during the auction to reach the phone bidder at the specified phone number in order to offer the opportunity of submitting a bid by telephone. However, the auctioneer can not be made liable in case the phone bidder is not available at the number he has specified, or in disturbances of the connection occur.
3.4 We explicitly indicate that telephone calls with the phone bidder may be recorded during the auction for purposes of documentation and evidence and that may be used exclusively for filling the contract and for the acceptance of bids, even if they do not lead to a conclusion of the sale.
In case the phone bidder disagrees, he must inform staff at the beginning of the call the latest.
The phone bidder shall be additionally informed about modalities specified in section 3.4 in time before the auction in written form or text form, likewise at the beginning of the phone call.
3.5 When using a currency converter (for example in a live auction) we disclaim any liability regarding the currency converter's correctness. In case of doubt, the respective bidding price in EURO is decisive.
3.6 Bidders in live auctions are obliged to keep all login details for their account secret and to adequately secure data from access by third parties. Third parties are all persons excluding the bidder. The auctioneer must be informed immediately in case the bidder has notified an abuse of login details by third parties. The bidder is liable for all actions conducted by third parties using his account, as if he had conducted these activities himself.
3.7 It is possible to place bids after the auction in what is referred to as the post-auction sale. As far as this has been agreed upon between the consignor and the auctioneer, such bids shall be regarded as offers to conclude a contract of sale in the post-auction sale. An agreement shall be brought about only if the auctioneer accepts this offer. These Terms of Public Auction shall apply correspondingly unless they exclusively concern auction-specific matters during an auction.
4. Passage of risk/costs of handing over and shipment
4.1 The risk shall pass to the purchaser on acceptance of the bid, especially the risk of accidental destruction and deterioration of the item sold by auction. The purchaser shall also bear the expense.
4.2 The costs of handing over, acceptance and shipment to a place other than the place of performance shall be borne by the purchaser. The auctioneer shall determine the mode and means of shipment at his discretion.
4.3 From the time of acceptance of the bid, the item sold by auction shall be stored at the auctioneer’s premises for the account and at the risk of the purchaser. The auctioneer shall be authorized but not obligated to procure insurance or conclude other measures to secure the value of the item. He shall be authorized at all times to store the item at the premises of a third party for the account of the purchaser. Should the item be stored at the auctioneer’s premises, he shall be entitled to demand payment of the customary warehouse fees (plus transaction fees).
5. Purchase price/payment date/charges
5.1 The purchase price shall be due and payable on acceptance of the bid (in the case of a post-auction sale, compare Item 3.3, it shall be payable on acceptance of the offer by the auctioneer). Invoices issued during or immediately after the auction require verification; errors excepted.
5.2 Cash payments shall be made to the auctioneer in Euro (u). Checks and bills of exchange shall be accepted only on account of performance, on the basis of a separate agreement and after calculating all costs and taxes; the auctioneer shall not be liable for timely presentation, protesting, notification or return of dishonored checks or bills of exchange. If the auctioneer agrees to cashless payment, all costs and fees related to the transfer (including the bank charges levied on the auctioneer) shall be payable by the purchaser.
5.3 The sale shall be subject to the margin tax scheme or the standard tax rate according to the consignor’s specifications. Inquiries regarding the type of taxation may be made before the purchase. In any case the standard tax rate may be requested up until 7 days after invoicing.
5.4.1 Unless otherwise specified, art objects in the catalog are subject to differential taxation.
For differential taxation a premium for single objects will be charged as follows:
Hammer price up to 500,000 Euro: resulting premium of 28 %.
The share of the hammer price that exceeds 500,000 euro is subject to a premium of 26 % and will be added to the premium that incurs for the hammer price up to 500,000 euro.
Each item includes the statutory VAT of currently 19 %. 1.8 % droit de suite will be added to the hammer price.
5.4.2 Art objects marked 'N' in the catalog were imported into the EU for the purpose of sale. These objects are subject so differential taxation. The advanced import turnover tax of currently 7% of the invoice total is generally added to the invoice total as well as 1.8% droit de suite from the hammer price.
5.4.3 Art object marked 'R' in the catalog are subject to regular taxation. Accordingly, the purchasing price consists of the hammer price and a premium per single object which is calculated as follows:
Hammer prices up to 500,000 Euro: resulting premium of 20 %.
The share of the hammer price that exceeds 500,000 euro is subject to a premium of 18 % and will be added to the premium that incurs for the hammer price up to 500,000 euro.
The statutory VAT of currently 19% is added to the sum of hammer price and premium, as well as 1.8 % droit de suite (droit de suite is due for all artworks, the amount resulting from the 1.8% in many cases is just part of the amount the auctioneer pays.).
An exception therefrom applies to printed books to which a reduced VAT of 7 % is added.
For contractors entitled to input tax reduction for art and antiquities regular taxation may be applied.
5.5 Export shipments in EU countries are exempt from value added tax on presenting the VAT number. Export shipments in non-member countries (outside the EU) are exempt from value added tax; if the items purchased by auction are exported by the purchaser, the value added tax shall be reimbursed to him as soon as the export certificate is submitted to the auctioneer.
6. Advance payment, Reservation of title
6.1 The auctioneer shall not be obligated to release the item sold by auction to the purchaser before payment of all the amounts owed by him.
6.2 The title to the object of sale shall pass to the purchaser only when the invoice amount owed is paid in full. If the purchaser has already resold the object of sale on a date when he has not yet paid the amount of the auctioneer’s invoice or has not paid it in full, the purchaser shall transfer all claims arising from this resale up to the amount of the unsettled invoice amount to the auctioneer. The auctioneer hereby accepts this transfer.
6.3 If the purchaser is a legal entity under public law, a separate estate under public law or an entrepreneur who is exercising a commercial or independent professional activity while concluding the contract of sale, the reservation of title shall also be applicable for claims of the auctioneer against the purchaser arising from the current business relationship and other items sold at the auction until the settlement of the claims that he is entitled to in connection with the purchase.
7. Offset and right of retention
7.1 The purchaser can offset only undisputed claims or claims recognized by declaratory judgment against the auctioneer.
7.2 The purchaser shall have no right of retention. Rights of retention of a purchaser who is not an entrepreneur within the meaning of § 14 of the German Civil Code (BGB) shall be unenforceable only if they are not based on the same contractual relationship.
8. Delay in payment, revocation, auctioneer’s claim for compensation
8.1 Should the purchaser’s payment be delayed, the auctioneer may demand default interest at the going interest rate for open current account credits, without prejudice to continuing claims. The interest rate demanded shall however not be less than the respective statutory default interest in accordance with §§ 288, 247 of the German Civil Code (BGB). When default occurs, all claims of the auctioneer shall fall due immediately, even if checks and bills of exchange have been accepted.
8.2 Should the auctioneer demand compensation instead of performance on account of the delayed payment and should the item be resold by auction, the original purchaser, whose rights arising from the preceding acceptance of his bid shall lapse, shall be liable for losses incurred thereby, for e.g. storage costs, deficit and loss of profit. He shall not have a claim to any surplus proceeds procured at a subsequent auction and shall also not be permitted to make another bid.
8.3 The purchaser must collect his purchase from the auctioneer immediately, no later than 8 days after the bid is accepted. If he falls behind in performing this obligation and does not collect the item even after a time limit is set or if the purchaser seriously and definitively declines to collect the item, the auctioneer may withdraw from the contract of sale and demand compensation with the proviso that he may resell the item by auction and assert his losses in the same manner as in the case of default in payment by the purchaser, without the purchaser having a claim to any surplus proceeds procured at the subsequent auction. Moreover, in the event of default, the purchaser shall also owe appropriate compensation for all recovery costs incurred on account of the default.
9.1 All items that are to be sold by auction may be viewed and inspected before the auction begins. The items are used and are being auctioned off without any liability on the part of the auctioneer for material defects and exclude any guarantee. However, the auctioneer is obliged to compensate the buyer in case of defects as to quality which make the object's value or efficiency void or decrease it significantly, in case the buyer asserts his claims with the auctioneer within 12 months after the sale, to subrogate his resulting claims towards the consignor, and, in case the buyer does not accept the offer of subrogation, to assert claims towards the consignor himself. In case of the consignor's effective claim through the auctioneer, the auctioneer pays out the buyer the price realized up to exclusively the amount of the hammer price delivery versus payment against return of the object. The buyer is not obliged to return the object in case the auctioneer, in context of the assertion of claims against the consignor, or other beneficiaries, is not obligated to return the object. The buyer is only entitled to these rights (consignor's subrogation or claim and payout of proceeds), if the auctioneer's accounts have been fully settled. In order to make the assertion of defect as to quality against the auctioneer effective, the buyer must supply an expertise issued by an approved authority on the respective subject (or the author of the catalog raisonneé, a certificate issued by the artist or by the artist’s foundation), which will deliver proof of the defect. The buyer remains obligated to payment of the premium as a service charge. The used items shall be sold at a public auction in which the bidder/purchaser may personally participate. The provisions regarding the sale of consumer goods shall not be applicable according to § 474 par. 1 sentence 2 of the German Civil Code (BGB)
9.2 The catalog descriptions are given to the best of our knowledge and belief and do not constitute any contractually stipulated qualities or characteristics within the meaning of § 434 of the German Civil Code (BGB). On the contrary, these are only intended to serve as information to the bidder/purchaser unless the auctioneer has expressly assumed a guarantee in writing for the corresponding quality or characteristic. This also applies to expert opinions. The estimated prices stated in the auctioneer’s catalog or in other media (internet, other promotional means) serve only as an indication of the market value of the items being sold by auction. No responsibility is taken for the correctness of this information. The fact that the auctioneer has given an appraisal as such is not indicative of any quality or characteristic of the object being sold.
9.3 In some auctions (especially in additional live auctions) video- or digital images of the art objects may be offered. Image rendition may lead to faulty representations of dimensions, quality, color, etc. The auctioneer can not extend warranty and assume liability for this. Respectively, section 10 is decisive.
The purchaser’s claims for compensation against the auctioneer, his legal representative, employee or vicarious agents shall be unenforceable regardless of legal grounds. This shall not apply to losses on account of intentional or grossly negligent conduct on the part of the auctioneer, his legal representative or his vicarious agents. The liability exclusion does not apply for acceptance of a guarantee or for the warranty of feature insofar as these are basis of liability. Liability for losses arising from loss of life, personal injury or injury to health shall remain unaffected.
11. Final provisions
11.1 Any information given to the auctioneer by telephone during or immediately after the auction regarding events concerning the auction – especially acceptance of bids and hammer prices – shall be binding only if they are confirmed in writing.
11.2 Verbal collateral agreements require the written form to be effective. This shall also apply to the cancellation of the written form requirement.
11.3 In business transactions with businessmen, legal entities under public law and separate estates under public law it is additionally agreed that the place of performance and place of jurisdiction (including actions on checks and bills of exchange) shall be Munich. Moreover, Munich shall always be the place of jurisdiction if the purchaser does not have a general place of jurisdiction within the country.
11.4 Legal relationships between the auctioneer and the bidder/purchaser shall be governed by the Law of the Federal Republic of Germany; the UN Convention relating to a uniform law on the international sale of goods shall not be applicable.
11.5 Should one or more terms of these Terms of Public Auction be or become ineffective, the effectiveness of the remaining terms shall remain unaffected. § 306 section 2 BGB (German Civil Code) shall apply.
11.6 These Terms of Public Auction contain a German as well as an English version. The German version shall be authoritative in all cases. All terms used herein shall be construed and interpreted exclusively according to German law.
(Status October 2014)