Ketterer Kunst GmbH Hamburg
1.1 Ketterer Kunst GmbH & Co. KG based in Hamburg (hereinafter “Auctioneer”) generally auctions as a commission agent in its own name and for the account of the consignor (hereinafter “Commissioner”), who remains anonymous. Items owned by the auctioneer (own goods) are auctioned in their own name and for their own account. These auction conditions also apply to the auction of these own goods, in particular the surcharge (under item 5) is also to be paid for this.
1.2 The auction shall be conducted by an individual having an auctioneer’s license; the auctioneer shall select this person. The auctioneer is entitled to appoint suitable representatives to conduct the auction pursuant to § 47 of the German Trade Regulation Act (GewO). 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 that specified in the catalog or to withdraw them.
1.4 Any items due to be auctioned may be inspected on the auctioneer’s premises prior to the auction. This also applies to participation in auctions in which the bidder can also bid via the Internet (so-called live auctions). The time and place will be announced on the auctioneer’s website. If the bidder (particularly the bidder in a live auction) is not (or no longer) able to view the item because the auction has already started, for example, he waives his right to view the item by bidding.
1.5 In accordance with the GwG (Money Laundering Act) the auctioneer is obliged to identify the purchaser and those interested in making a purchase as well as, if necessary, one acting as representative for them and the „beneficial owner“ within the meaning of § 3 GwG (Money Laundering Act) for the purpose of the execution of the order, as well as to record and store the collected data and information. The aforementioned purchaser or those interested in purchasing or their representatives are obliged to cooperate, in particular to submit the necessary identification papers, in particular based on a domestic passport or a passport, identity card or passport or identity card that is recognized or approved under immigration law. The auctioneer is entitled to make a copy of this in compliance with data protection regulations. In the case of legal persons or private companies, an extract from the commercial or cooperative register or a comparable official register or directory must be requested. The purchaser or those interested in the purchase assure that the identification papers and information provided by them for this purpose are correct and that he or the person he represents is the „beneficial owner“ according to Section 3 GwG (Money Laundering Act).
2. Calling / Auction Procedure / Knock-down
2.1 As a general rule the object is called up for the lower estimate, in exceptional cases it also below. The bidding steps are be at the auctioneer’s discretion; in general, in steps of 10 %.
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 of 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 on behalf of someone else, he must notify the bidder before the start of the auction, stating the name and address of the person represented and submitting a written power of attorney. When participating as a telephone bidder or as a bidder in a live auction (see definition Section 1.4), representation is only possible if the auctioneer has received the proxy in writing at least 24 hours before the start of the auction (= first call). Otherwise, the representative is liable to the auctioneer for his bid, as if he had submitted it in his own name, either for performance or for damages.
2.4 A bid expires, except in the case of its rejection by the auctioneer, if the auction is closed without a bid being accepted or if the auctioneer calls up the item again; a bid does not expire with a subsequent ineffective higher bid.
2.5 In addition, the following applies to written proxy bids: These must be received no later than the day of the auction and must name the item, stating the catalog number and the bid price, which is understood to be the hammer price without surcharge and sales tax; Any ambiguities or inaccuracies are at the expense of the bidder. If the description of the auction item does not match the specified catalog number, the catalog number is decisive for the content of the bid. The auctioneer is not obliged to inform the bidder that his bid has not been considered. Each bid will only be used by the auctioneer to the amount necessary to outbid 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 commissioner 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 several bidders submit bids of the same amount, the auctioneer can, at his own discretion, award a bidder the bid or decide on the bid by drawing lots. If the auctioneer overlooked a higher bid or if there is any other doubt about the bid, he can choose to repeat the bid in favor of a specific bidder or offer the item again until the end of the auction; in these cases, a previous knock-down becomes ineffective.
2.8 Winning a lot makes acceptance and payment obligatory.
3. Special terms for written proxy bids, telephone bidders, bids in text form and via the internet, participation in live auctions, postauction sale.
3.1 The auctioneer exerts himself for considering written proxy bids, bids in text form, via the Internet or telephone bids that he only receives on the day of the auction and the bidder is not present at the auction. However, the bidder cannot derive any claims from this if the auctioneer no longer considers these offers in the auction, for whatever reason.
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 venue. The auctioneer shall however not assume any liability in this respect.
3.3 In general, it is not possible to develop and maintain software and hardware completely error-free given the current state of the art. It is also not possible to 100% rule out disruptions and impairments on the Internet and telephone lines. As a result, the auctioneer cannot assume any liability or guarantee for the permanent and trouble-free availability and use of the websites, the Internet and the telephone connection, provided that he is not responsible for this disruption himself. The standard of liability according to Section 10 of these conditions is decisive. Under these conditions, the provider therefore assumes no liability for the fact that, due to the aforementioned disruption, no or only incomplete or late bids can be submitted, which would have led to the conclusion of a contract without any disruption. Accordingly, the provider does not assume any costs incurred by the bidder as a result of this disruption. During the auction, the auctioneer will make reasonable efforts to contact the telephone bidder on the telephone number he/she has provided and thus give him the opportunity to bid by telephone. However, the auctioneer is not responsible for not being able to reach the telephone bidder on the number provided or for disruptions in the connection.
3.4 It is expressly pointed out that telephone conversations with the telephone bidder during the auction may be recorded for documentation and evidence purposes and may exclusively be used for fulfillment of a contract and to receive bids, even where these do not lead to fulfillment of the contract.
If the telephone bidder does not agree to this, he/she must point this out to the employee at the latest at the beginning of the telephone call. The telephone bidder will also be informed of the modalities listed in Section 3.4 in good time before the auction takes place in writing or in text form, as well as at the beginning of the telephone call.
3.5 In case of the use of a currency converter (e.g. for a live auction) no liability is assumed for the accuracy of the currency conversion. In case of doubt, the respective bid price in EUR shall be the decisive factor.
3.6 A bidder in a live auction is obliged to keep all access data for his user account secret and to adequately secure it against access by third parties. Third persons are all persons with the exception of the bidder himself. The auctioneer must be informed immediately if the bidder becomes aware that third parties have misused the bidder’s access data. The bidder is liable for all activities carried out by third parties using his user account as if he had carried out this activity himself.
3.7 It is possible to place bids after the auction, in the the so-called post-auction sale. Insofar as the consignor has agreed upon this with the auctioneer, they apply as offers for the conclusion of a purchase contract in the post-auction sale. A contract is only concluded when the auctioneer accepts this offer. The provisions of these terms of auction apply accordingly, unless they are exclusively provisions that relate to the auction-specific process within an auction.
4. Transfer of perils / Delivery and shipping costs
4.1 When the bid is accepted, the risk, in particular the risk of accidental loss and accidental deterioration of the auction item, passes to the buyer, who also bears the costs.
4.2 The buyer bears the costs of delivery, acceptance and shipment to a location other than the place of performance, with the auctioneer determining the type and means of shipment at its own discretion.
4.3 Once the bid has been accepted, the auction item is stored at the auctioneer at the risk and expense of the buyer. The auctioneer is entitled, but not obliged, to take out insurance or to take other value-preserving measures. He is entitled at any time to store the item with a third party for the account of the buyer; if the item is stored at the auctioneer, the auctioneer can demand payment of a standard storage fee (plus handling charges).
5. Purchase price / Due date / Fees
5.1 The purchase price is due upon the acceptance of the bid (in the case of post-auction sales, cf. section 3.7, upon acceptance of the bid by the auctioneer). Invoices issued during or immediately after the auction require reaudit; errors excepted.
5.2 The buyer shall only make payments to the account specified by the auctioneer. The fulfillment effect of the payment only occurs when it is finally credited to the auctioneer’s account.
All costs and fees of the transfer (including the bank charges deducted from the auctioneer) shall be borne by the buyer, insofar as this is legally permissible and does not fall under the prohibition of Section 270a of the German Civil Code.
5.3 Depending on the consignor’s specifications, it will be sold subject to differential or regular taxation. The type of taxation can be requested prior to purchase.
5.4 Buyer's surcharge
5.4.1 Objects without closer identification in the catalog are subject to differential taxation. If differential taxation is applied, the following surcharge per individual object is levied:
– Hammer price up to 200,000 Euro: herefrom 32 % surcharge.
– The share of the hammer price exceeding 200,000 Euro is subject to a surcharge of 27 % and is added to the surcharge of the share of the hammer price up to 200,000 Euro.
– The purchasing price includes the statutory VAT of currently 19 %.
5.4.2 Objects marked „N“ in the catalog were imported into the EU for the purpose of sale. These objects are subject to differential taxation. In addition to the surcharge, they are also subject to the import turnover tax, advanced by the auctioneer, of currently 7 % of the invoice total.
5.4.3 Objects marked „R“ in the catalog are subject to regular taxation. Accordingly, the purchasing price consists of the hammer price and a surcharge per single object calculated as follows:
– Hammer price up to 200,000 Euro: herefrom 25 % surcharge.
– The share of the hammer price exceeding 200,000 Euro is subject to a surcharge of 20 % and is added to the surcharge of the share of the hammer price up to 200,000 Euro.
– The statutory VAT of currently 19 % is levied to the sum of hammer price and surcharge. As an exception, the reduced VAT of 7 % is added for printed books.
Regular taxation may be applied for contractors entitled to input tax reduction.
5.5 Artist’s Resale Right
For original works of visual art and photographs subject to resale rights by living artists, or by artists who died less than 70 years ago, an additional resale right reimbursement in the amount of the currently valid percentage rates (see below) specified in section 26 para. 2 UrhG (German Copyright Act) is levied in order to compensate the auctioneer’s expenses according to section 26 UrhG.
4 percent for the part of the sale proceeds from 400.00 euros up to 50,000 euros, another 3 percent for the part of the sales proceeds from 50,000.01 to 200,000 euros, another 1 percent for the part of the sales proceeds from 200,000.01 to 350,000 euros, another 0.5 percent for the part of the sale proceeds from 350,000.01 to 500,000 euros and a further 0.25 percent for the part of the sale proceeds over 500,000 euros.
The maximum total of the resale right fee from a resale is EUR 12,500.
5.6 Export deliveries to EU countries are exempt from sales tax on presentation of the VAT number. Export deliveries to third countries (outside the EU) are exempt from VAT; if the auctioned items are exported by the buyer, the sales tax will be refunded to the buyer as soon as the auctioneer has the proof of export.
6. Advance payment / Retention of title
6.1 The auctioneer is not obliged to hand out the auction item before payment of all amounts owed by the buyer has been made.
6.2 Ownership of the object of purchase is only transferred to the buyer once the invoice amount has been paid in full. If the buyer has already resold the object of purchase at a point in time when he has not yet paid the auctioneer’s invoice amount or has not paid it in full, the buyer transfers all claims from this resale to the auctioneer up to the amount of the unpaid invoice amount. The auctioneer accepts this transfer.
6.3 If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who, when concluding the purchase contract, is exercising his commercial or self-employed professional activity, the retention of title also applies to claims of the auctioneer against the buyer from the current business relationship and other auction items until the settlement of claims in connection with the purchase.
7. Right of offset- and retention
7.1 The buyer can only offset undisputed or legally binding claims against the auctioneer.
7.2 The buyer’s rights of retention are excluded. Rights of retention of the buyer who is not an entrepreneur within the meaning of § 14 BGB (German Civil Code) are only excluded if they are not based on the same contractual relationship.
8. Delay in payment, Revocation, Claims for compensation
8.1 If the buyer is in default with a payment, the auctioneer can, regardless of further claims, demand interest for default at the usual bank interest rate for open overdrafts, but at least in the amount of the respective statutory interest on defaults according to §§ 288, 247 BGB (German Civil Code). With the occurrence of default, all claims of the auctioneer become due immediately.
8.2 If the auctioneer demands compensation instead of performance because of the late payment and if the item is auctioned again, the original buyer, whose rights from the previous bid expire, is liable for the damage caused as a result, such as storage costs, failure and lost profit. He has no claim to any additional proceeds realized in the repeated auction and is not permitted to make any further bids.
8.3 The buyer must collect his acquisition from the auctioneer immediately, at the latest 1 month after the bid has been accepted. If he defaults on this obligation and collection does not take place despite an unsuccessful deadline, or if the buyer seriously and finally refuses collection, the auctioneer can withdraw from the purchase contract and claim compensation with the proviso that he can auction the item again and compensate for his damage in the same way as in the event of default in payment by the buyer, without the buyer being entitled to additional proceeds from the new auction. In addition, the buyer also owes reasonable compensation for all collection costs caused by the delay.
8.4 The auctioneer is entitled to withdraw from the contract if it emerges after the conclusion of the contract that he is not or was not entitled to carry out the contract due to a legal provision or official instruction or there is an important reason, that makes the execution of the contract for the auctioneer, also under consideration of the legitimate interests of the buyer, unacceptable. Such an important reason exists in particular if there are indications of the existence of facts according to §§ 1 Para. 1 or 2 of the transaction in the sense of the Money Laundering Act (GwG) or in the case of missing, incorrect or incomplete disclosure of the identity and economic background of the transaction in the sense of the Money Laundering Act (GwG ) as well as insufficient cooperation in the fulfillment of the obligations resulting from the Money Laundering Act (GwG), regardless of whether on the part of the buyer or the consignor. The auctioneer will seek clarification without negligent hesitation as soon as he becomes aware of the circumstances that justify the withdrawal.
9.1 All items to be auctioned can be viewed and inspected prior to the auction. 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, in case of material defects which destroy or significantly reduce the value or the serviceability of the item and of which the purchaser notifies the auctioneer within 12 months of the acceptance of his bid, the auctioneer undertakes to assign any claim which it holds against the consignor or - should the purchaser decline this offer of assignment - to itself assert such claims against the consignor. In the case of a successful claim against the consignor by the auctioneer, the auctioneer pays the buyer the amount obtained up to the amount of the hammer price, step by step, against the return of the item. The buyer is not obliged to return the item to the auctioneer if the auctioneer itself is not obliged to return the item within the framework of asserting claims against the consignor or another entitled person. The buyer is only entitled to these rights (assignment or claim against the consignor and payment of the proceeds) if he has paid the auctioneer’s invoice in full. In order for the assertion of a material defect to be effective against the auctioneer, the buyer must submit a report from a recognized expert (or the creator of the catalog raisonné, the artist’s declaration or the artist’s foundation), which proves the defect. The buyer remains obliged to pay the surcharge as a service fee.
9.2 The used items are sold in a public auction in which the bidder/buyer can participate in person. If the bidder/buyer is also a consumer within the meaning of § 13 BGB (German Civil Code), he is expressly advised of the following:
Since he bids for a work of art that represents a used item in a public auction within the meaning of Section 312g Paragraph 2 No. 10 BGB, the provisions of consumer goods sales, i.e. the provisions of Sections 474 et seq. BGB, do not apply to this purchase.
A „publicly accessible auction“ within the meaning of Section 312g Paragraph 2 No. 10 BGB is understood as such a form of marketing in which the seller offers goods or services to consumers who are present in person or who are granted this opportunity, in a transparent process based on competing bids carried out by the auctioneer, in which the winning bidder is obliged to purchase the goods or service.
Since the possibility of personal presence is sufficient for the exception of Section 474 (2) sentence 2 BGB, it is not important that one or more consumers actually took part in the auction. The auction via an online platform is therefore also to be regarded as a publicly accessible auction if the possibility of the consumer’s personal presence is guaranteed.
Therefore, the warranty exclusions and limitations listed in these conditions also apply to a consumer.
9.3 The catalog descriptions and illustrations, as well as the images in other media of the auctioneer (internet, other forms of advertising, etc.), were made to the best of knowledge, they do not constitute a guarantee and are not contractually agreed properties within the meaning of § 434 BGB, but only serve to inform the bidder/buyer, unless the auctioneer expressly and in writing guarantees the corresponding quality or property. This also applies to expertises. The estimate prices specified in the auctioneer’s catalog and descriptions in other media (internet, other advertisements, etc.) serve - without guarantee for the correctness - only as an indication of the market value of the items to be auctioned. The fact of the assessment by the auctioneer as such does not represent any quality or property of the object of purchase.
9.4 In some auctions (particularly in the case of additional live auctions), video or digital images of the works of art may be used. Errors in the display in terms of size, quality, coloring etc. can occur solely because of the image reproduction. The auctioneer cannot guarantee or assume any liability for this. Clause 10 applies accordingly.
Claims for compensation by the buyer against the auctioneer, his legal representatives, employees or vicarious agents are excluded - for whatever legal reason and also in the event of the auctioneer withdrawing according to Section 8.4. This does not apply to damages that are based on intentional or grossly negligent behavior on the part of the auctioneer, his legal representatives or his vicarious agents. The exclusion of liability also does not apply to the assumption of a guarantee or the negligent breach of essential contractual obligations, but in the latter case the amount is limited to the foreseeable and contract-typical damages at the time the contract was concluded. The liability of the auctioneer for damage resulting from injury to life, limb or health remains unaffected.
We expressly refer to the auctioneer’s applicable data protection regulations. They are published in the respective auction catalog, posted in the auction room and published on the internet on www.kettererkunst.de/datenschutz/index.php. They are part of the contract and the basis of every business contact, even in the initiation phase.
12. Final Provisions
12.1 Information provided by the auctioneer over the phone during or immediately after the auction about the auction processes – in particular regarding surcharges and hammer prices - are only binding if they are confirmed in writing.
12.2 Oral ancillary agreements must be put in writing in order to be effective. The same applies to the cancellation of the requirement of the written form.
12.3 In business transactions with merchants, legal entities under public law and special funds under public law, it is also agreed that the place of fulfillment and jurisdiction is Munich. Furthermore, Munich is always the place of jurisdiction if the buyer does not have a general place of jurisdiction in Germany.
12.4 The law of the Federal Republic of Germany applies to the legal relationship between the auctioneer and the bidder/buyer, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12.5 Dispute Resolution:
The provider is neither legally obliged nor voluntarily to join a dispute resolution (e. g. Art. 36 Para. 1 `Verbraucherstreitbeilegungsgesetz (Consumer Dispute Settlement Act, VSBG) before a consumer arbitration board and is therefore not willing to participate in such a resolution.
12.6 Should one or more provisions of these terms of auction be or become invalid, the validity of the remaining provisions shall remain unaffected. Section 306 paragraph 2 of the German Civil Code applies.
12.7 These auction conditions contain a German and an English version. The German version is always decisive, whereby the meaning and interpretation of the terms used in these auction conditions are exclusively dependent on German law.
(Date of issue: 05/2022)