General terms and conditions
AUCTION TERMS AND CONDITIONS
1. Validation of the GTC. The following terms and conditions are deemed acknowledged and accepted with the personal or written participation in the auction or participation via telecommunications and with the delivery of items for auctioning, and they also apply for post-auction sale in the open market.
2. Auction for the client. The auction shall be effected voluntarily in the name and for the account of the seller with the exception of proprietary items that are indicted by figures not enclosed in brackets. Figures in brackets indicate the owner/ client.
3. Description of lots. The catalogue descriptions are produced to our best knowledge and belief; however, no guarantee is given for the correctness of the descriptions, nor information about the origin, condition, age, authenticity, and attribution of a work. If an artwork is attributed only, it is therefore not proofed to be an authentic work by the mentioned artist. The description of conditions in the catalogue texts of items in all auctions are meant solely as indications for serious damage. The absence of information shall not be interpreted to the effect that an item is in good condition or free of faults or defects. Potential buyers are requested to establish for themselves or enquire about the condition of all items to be auctioned. All items for auctioning can be inspected and examined before the auction and during bidding if possible. Information given by the auctioneer or company employees about destinations, attributions, dimensions, weight, completeness etc. are given to their best knowledge and belief, likewise without warranty even if these representations have been made in the catalogue. The auctioneer reserves the right to add or change catalogue text if necessary. This pertains mostly to rephrasing of the text via internet or through the auctioneer personally before or during the knockdown of an object and replaces the original description in the printed catalogue. In the case of doubt, the catalogue text shall take priority over an illustration.
4. Exclusion of warranty. All items offered for auction are in used condition. They shall be auctioned without any warranty whatsoever just as they are at the time of being knocked down with exclusion of warranty according to § 437, No. 1, 2 and 3 second alternative German Civil Code. Warranty according to point 19 remains unaffected.
5. Reversal of the sale in exceptional cases. If the buyer proves within four weeks from the date of the auction that factual representations on the auctioned item were incorrect in key aspects, the auctioneer shall take the item back and reimburse the purchase price. After the fore mentioned period, the auctioneer is entitled but not obliged to reverse the contract of sale in the name of the seller and reimburse the buyer the purchase price against return of the auctioned item for up to three years after the auction, if factual descriptions were incorrect in key aspects. However, this is only possible with the seller's consent. Since the proceeds have already been disbursed, the seller shall return the disbursed amount to the auctioneer for reversing the sale. If the auctioneer chooses to rescind the contract of sale due to a complaint, he shall notify the seller to that effect; sufficiently sending the said notification to the last address known to the auctioneer. The sale shall not be reversed if the seller objects to reversal of the sale within two weeks of notification. In that case, the buyer must take legal action to assert his or her claims.
6. Knockdown. The item shall be knocked down if no higher bid is submitted upon the third time of asking. If several persons are bidding the same price at the same time and no higher bid is submitted upon the third time of asking, knockdown shall be decided by lot. In the case of identical written bids, knockdown goes to the first bid received. If there are any doubts that an item has been knocked down or to whom or if a bid submitted in good time was overlooked or if the highest bidder does not want the bid to count, the auctioneer can withdraw the knockdown. At this time the item is void again and can be offered for new bidding. Objections to a knockdown must be raised without delay, i.e. before the next lot is called. Where there is good cause, the auctioneer can reserve the knockdown in the client's name or refuse to declare a knockdown. This shall be the case in particular if at the auctioneer's demand bidders cannot furnish collateral appropriate for the value of the bid before the auction. A bid will be terminated if it is rejected by the auctioneer, if the auction closes without a knockdown, or the item is put up for bidding again. An ineffective bid will not extinguish the previous one.
7. Written and telephone bids. To ensure the processing of written bids, these must be received by the auctioneer at least 24 hours before the start of the auction. A written bid will only be effective if it contains a precise description of the bidder's person or company and the lot. Written bids must also include a telephone number under which the bidder can be contacted. The bid is restricted to the stated lot number also if the description differs. Written bids shall be accepted by the auctioneer only with the amount required to outbid another submitted bid. Telephone bidders shall be contacted through phoning the bidder before the desired lot is called up. Phone bidding is only possible for items that have a limit of EUR 150.00 or higher. Condition for telephone bidding is a written notification from the bidder received by the auctioneer 24 hours before the start of the auction at the latest. Telephone bidding presumes that the auction limit stated in the catalogue is deemed a minimum bid, even if the bidder cannot be reached at the time of the item to be auctioned. For items without limit a minimum bid of EUR 150.00 is automatically accepted by telephone bidders. All bids are binding and cannot be cancelled or lowered. The auctioneer is warranted not to register written or telephone bids if there are doubts of assignment, identity, seriousness, or because of technical or organizational reasons. In general there is no demand for acceptance of written or telephone bids existing.
8. Disclosures required from bidders. Before the start of the auction, all bidders must disclose their names and addresses. This applies, even if the bidder is acting as an agent at the auction. In this case, the bidder must also state the name and address of the principal. The auctioneer is entitled to ask for additional personal information (i.e. copy of a valid passport and / or credit-cards) for security reasons. When in doubt, the bidder will be deemed as buying in his or her own name and account. The bidder shall receive a bidder number for participating in auctions and shall be responsible for any misuse thereof. New customers must submit a cash deposit or a current creditworthiness confirmation from their bank before the start of the auction.
9. Staging of the auction. A lot is the number under which an item in the auction shall be called and referred to in the auction catalogue or offered in open sale. The auctioneer reserves the right to merge or separate lot numbers, offer the same out of sequence or withdraw the same where there is good material reason to do so. The auctioneer also has the right to reserve an item under limit by under-reservation knockdown. A knockdown due to reservation (under reservation knockdown) can be handled without consultation of the seller also in case if the ownership of an item is claimed by a third party. In this case the auctioneer is entitled to shut away the item until full clarification of the right of property (if necessary by justice). Emerging costs for clarification and storage have to be paid by the seller if not decided otherwise.
The bidding price of an object must always be more than the last bid that has been given. The bidding steps in monetary currency are as follows:
EUR 5 to 100 = 5 euro steps
EUR 100 to 200 = 10 euro steps
EUR 200 to 500 = 20 euro steps
EUR 500 to 1.000 = 50 euro steps
EUR 1.000 to 2.000 = 100 euro steps
EUR 2.000 to 5.000 = 200 euro steps
EUR 5.000 to 10.000 = 500 euro steps
over EUR 10.000 = 1.000 euro steps.
10. Under reservation knockdowns and after sale bids. If the limit agreed with the seller is not achieved, the auctioneer can knock the item down subject to reservation (under reservation knockdown). In the case of a post-bid of the limit, the item can also be knocked down to another bidder without consultation or sold post auction in the open market. Bids with under reservation knockdowns are binding contracts for bidders up to six weeks but non-binding for the auctioneer. However, the item may also be knocked down for less than the limit price. The after sale is part of the regular auction in which the potential buyer registers with a written bid of a certain amount. Right of withdrawal is excluded according to § 312d Abs. 4 No. 5 German Civil Code.
11. Effect of the knockdown. All knockdowns are in Euros. The knockdown has the effect of conclusion of a binding contract of sale giving rise to a duty of acceptance. Goods shall only pass with the payment of the purchase price in full including all additional costs stated on the invoice (reservation of property rights according to § 449 German Civil Code). However, risk for all and any harm or loss shall pass to the buyer already with the knockdown.
12. Purchase price. The purchase price is due and payable after knockdown has been received. The hammer price carries a 23% buyer’s premium incl. 19% VAT (net 19,33%). VAT is levied on the premium only and thus on the domestic performance; it is not reimbursable for foreign bidders. Payment by credit card carries a processing fee of 3.5% of the invoice amount plus VAT, Maestro cards issued by foreign banks carries a fee of 1% plus VAT.
13. Payment default. Payment default shall incur at least a default interest of eight percentage points above the pertinent base rate as stated in § 247 German Civil Code. If the buyer can prove that a loss of that amount was not incurred, only the statutory default interest rate shall be applied. In the case of payment in a foreign currency, any exchange-rate loss and bank charges shall be carried by the buyer. The same applies for cheques, which can be acknowledged as fulfilment only after unconditional bank crediting. Even without a reminder, the buyer is liable in the case of late or refused payment and acceptance of a knocked down item for all and any loss or harm incurred as a result. The auctioneer can optionally demand performance of the purchase contract, or according to § 323 German Civil Code is able to stand back from the contract in the name of the seller; in this case he can claim for compensation because of non-payment. The right for compensation of damage caused by delay in performance exists next to the claim for performance. After withdrawal from the contract the auctioneer is allowed to auction the item again to the buyer’s expense In this case the buyer is liable especially for the shortfall and further has to compensate the claims for buyer’s premium and seller’s provision out of the first auctioneering. However, he is not entitled to any additional proceeds. Further he is barred from bidding again. The auctioneer is allowed to claim in his own name for the loss of the seller and on his bill.
14. Collection by the auctioneer. The auctioneer can collect or sue for purchase prices, ancillary services and also ancillary payments in his client's name. Only those catalogue numbers which have been paid in full by the buyer are authorized for payout to the seller.
15. Settlement, delivery. Upon payment each buyer will receive an invoice showing the catalogue numbers, designations and prices including the premium and VAT. The items shall be handed over after payment has been rendered against presentation of receipt invoice. After the auction, buyer and seller can ask the auctioneer about the corresponding contractual party. If the buyer does not collect the items within 14 days after the last day of auction, they will be held without any liability for loss and damage. Storage costs in height of EUR 7.14 incl. VAT will be charged per day and item to the buyer. If costs for storage are demonstrably higher they have to be paid by the buyer. He has to provide proof on his own that lower or no expenses incurred. Storage, also externally, packing, insurance and shipping of auctioned items shall be at the buyer's expense and risk; the auctioneer is merely the intermediary of these additional services. Shipping orders will only be carried out if the auctioneer or the company he engages therefor is in possession of a shipping order signed by the buyer and the ascertained shipping charges and all of the auctioneer's other claims have been paid. During the auction, release and removal of auctioned items shall be permitted only in exceptional cases and with the auctioneer's prior approval. If the buyer is since more than twelve months in default of acceptance, the auctioneer is authorized to sell the bought items again in the name and upon invoice of the buyer for example to compensate accumulated storage costs.
16. Withdrawal of the auction commission, infeasibility of an auction. If the seller withdraws the entire or part of the commission, or if the submitted items can’t be auctioned because of culpable neglect of duty by the seller, a defect of the item caused by the seller or culpable inapplicable description by the seller, he or she shall pay the auctioneer 10% of the estimated value plus 19% VAT and the costs incurred until collection. The seller is entitled to prove that no or a significantly less loss or harm has arisen.
17. Oral arrangements. Arrangements agreed orally or over the telephone shall only be effective if they are confirmed by the auctioneer in writing.
18. No re-sale in the auction room. No trading or re-sale of auctioned items is permitted in the auction room.
19. Limitation of liability. The auctioneer shall be liable for loss or harm caused by him, his statutory representatives or agents intentionally or negligently from the breach of cardinal duties or in the case of the fatalities, personal injury or impairment of health. Cardinal duties are those duties whose fulfilment renders the proper execution of the contract possible and on whose compliance the contractual party could generally rely. In all other cases, in particular the damage of items or financial losses (also default losses) through breach of secondary, protective or other duties not being cardinal duties, the auctioneer shall be liable only for damages for intention or gross negligence, and only to reimbursement of foreseeable loss or harm. This shall also apply for his statutory representatives and agents.
20. Place of fulfilment, legal forum, choice of law. The place of fulfilment for both parties is Berlin, Germany. The legal forum is Berlin, if the buyer is a registered merchant, a public-law legal entity or special fund within the meaning of the German terms or the buyer is not domiciled within the scope of German statutes or his or her whereabouts are not known at the time legal action is taken. The legal relationships shall be governed by German law with exclusion of the uniform act on the international purchase of movable goods and of the uniform law regarding the conclusion of international sales contracts relating to movable goods.
21. Items from the era the Third Reich. Unless they expressly state otherwise, the catalogue owners, auction participants and bidders warrant that they purchased the catalogue and the items illustrated or described therein from the era of the Third Reich only for purposes of civic instruction, prevention of anti-constitutional endeavours, for arts or science, research or teaching, for reporting of events of the present time or of history, or for similar purposes (§§ 86a, 86 German Criminal Code). Sellers offer these items only under the aforementioned conditions, Auktionshaus Dannenberg and its auctioneers furnish them solely under those conditions.
22. Severability clause. Should any clauses in these Auction Terms and Conditions be partially or totally invalid, this shall not affect the validity of the remaining clauses.
Auktionshaus Dannenberg, 10709 Berlin, Seesener Straße 8 – 9, Germany
Owners: Alexander and Robert Ernst