Rosebery Fine Art Ltd carries on business with bidders, buyers and all those present in the auction room prior to or in connection with a sale on the following General Conditions and on such other terms, conditions and notices as may be referred to herein.
In these Conditions:
(a) “auctioneer” means the firm of Rosebery Fine Art Ltd or its authorised auctioneer, as appropriate;
(b) “deliberate forgery” means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source but which is unequivocally described in the catalogue as being the work of a particular creator and which at the date of the sale had a value materially less than it would have had if it had been in accordance with the description;
(c) “hammer price” means the level of bidding reached (at or above any reserve) when the
auctioneer brings down the hammer;
(d) “terms of consignment” means the stipulated terms and rates of commission on which Rosebery Fine Art Ltd accepts instructions from sellers or their agents;
(e) “total amount due” means the hammer price in respect of the lot sold together with any premium, Value Added Tax chargeable and any additional charges payable by a defaulting buyer under these Conditions;
(f) “sale proceeds” means the net amount due to the seller, being the hammer price of the lot sold less commission at the stated rate, Value Added Tax chargeable and any other amounts due to us by the seller in whatever capacity and however arising;
(g) “You”, “Your”, etc. refer to the buyer as identified in Condition 2.
(h) The singular includes the plural and vice versa as appropriate.
2. Bidding Procedures and Conduct of the Auction
(a) Bidders are required to register their particulars before bidding and to satisfy any security arrangements before entering the auction room to view or bid. Any bidder who refuses to provide the requested identification may be refused permission to bid.
(b) The auctioneer has discretion at any time to refuse any bid, withdraw any lot, re-offer a lot for sale (including after the fall of the hammer) if they believes there may be error or dispute, and take such action as they reasonably thinks fit.
(c) Subject to condition 2(b) the contract between the buyer and seller is concluded on the striking of the auctioneers hammer whereupon the buyer becomes liable to pay the purchase price.
(d) Any post auction sales of lots offered at auction shall incorporate these conditions as if sold in the auction.
(e) Our right to bid on behalf of the seller is expressly reserved up to the amount of any reserve and the right to refuse any bid is also reserved.
3. Increments. Bidding increments shall be at the auctioneer’s sole discretion.
4. The Purchase Price. The buyer shall pay the hammer price together with a premium thereon of 25% up to £250,000 (30% inclusive of VAT), 20% from £250,000-500,000 (24% inclusive of VAT), 12% from £500,000 onwards (14.4% inclusive of VAT) The premium price is subject to VAT at the standard rate.
5. Value Added Tax. Value Added Tax on the hammer price is imposed by law on all items
affixed with an asterisk or double asterisk. Value Added Tax is charged at the appropriate
rate prevailing by law at the date of sale and is payable by buyers of relevant Lots. (Please refer to “Information for Buyers” for a brief explanation of the VAT position).
(1) Immediately a Lot is sold you will:
(a) give to us, if requested, proof of identity, and
(b) pay to us the total amount due in cash, debit, credit card or bank transfer or in such other way as is agreed by us.
(2) Any payments by you to us may be applied by us towards any sums owing from you to us on any account whatever without regard to any directions of you or your agent, whether express or implied.
7. Title and Collection of Purchases. The ownership of any Lots purchased shall not pass to you until you have made payment in full to us of the total amount due.
(a)(i) You shall at your own risk and expense take away any lots that you have purchased and paid for not later than 5 working days following the day of the auction.
(ii) Roseberys are unable to pack, post or delivery any items purchased through public or online auction, a list of suggested companies is supplied upon issuing of invoices, upon request or on the company website/s. These are suggestions only and are not the recommendation of Roseberys or affiliated with Roseberys in anyway and as such Roseberys cannot be held responsible for the individual performance of these companies.
(b) No purchase can be claimed or removed until it has been paid for and payment has cleared.
(c) Invoices will not be split or title transferred to another person(s). Invoices must be paid in full before any lots can be removed.
(d) Purchased lots must be collected within the allocated time as stated in the Information for Buyers section 13, storage charges are applicable thereafter. Purchased lots are at the Buyer’s risk (and therefore their sole responsibility for insurance) from the earliest of the collection or the 21st calendar day after the auction. Until risk passes Roseberys will compensate the buyer for any loss or damage to the lot up to a maximum of the purchase price paid.
8. Remedies for Non-Payment or Failure to Collect Purchases
(1) If any Lot is not paid for in full and taken away in accordance with these Conditions or if there is any other breach of these Conditions, we, as agent for the seller and on our own behalf, shall at our absolute discretion and without prejudice to any other rights we may have, be entitled to exercise one or more of the following rights and remedies:
(a) to proceed against you for damages for breach of contract;
(b) to rescind the sale of that Lot and/or any other Lots sold by us to you;
(c) to resell the Lot (by auction or private treaty) in which case you shall be responsible for any resulting deficiency in the total amount due (after crediting any part payment and adding any resale costs).
(d) to remove, store and insure the Lot at your expense and, in the case of storage, either at our premises or elsewhere;
(e) to charge interest at a rate not exceeding 1.5% per month on the total amount due to the extent it remains unpaid for more than 3 working days after the sale;
(f) to retain that or any other Lot sold to you until you pay the total amount due;
(g) to reject or ignore bids from you or your agent at future auctions or to impose conditions before any such bids shall be accepted;
(h) to apply any proceeds of sale of other Lots due or in future becoming due to you towards the settlement of the total amount due and to exercise a lien (that is a right to retain possession of) any of your property in our possession for any purpose until the debt due is satisfied.
(2) We shall, as agent for the seller and on our own behalf pursue these rights and remedies only so far as is reasonable to make appropriate recovery in respect of breach of these conditions
9. Third Party Liability. All members of the public on our premises are there at their own risk and must note the lay-out of the accommodation and security arrangements. Accordingly neither the auctioneer nor our employees or agents shall incur liability for death or personal injury (except as required by law by reason of our negligence) or similarly for the safety of the property of persons visiting prior to or at a sale.
10. Commission, Telephone Bids and Live Online Bidding. Whilst prospective buyers are stronglyadvised to attend the auction and are alwaysresponsible for any decision to bid for a particularLot and shall be assumed to have carefullyinspected and satisfied themselves as to itscondition we will if so instructed clearly and inwriting execute bids on their behalf.
(a) Lots will be purchased by the Auctioneer on behalf of the commission bidder for the lowest price allowed by other bids and/or reserves if any, up to and including their maximum bid amount recorded. The Auctioneers cannot accept responsibility for any neglect or default in executing or failing to execute commission bids whether through the auctioneer or through any online bidding software, or where a bidding slip has been completed incorrectly. We urge commission bidders, to ensure that the correct lot number(s) and price(s) are recorded on their bidding forms.
(b) Where two or more commission bids at the same level are recorded we reserve the right at our absolute discretion to prefer the first bid so made.
(c) Telephone Bids. Any person unable to attend the auction may request to bid on a specific lot by telephone. This facility is only available by prior arrangement with the Auctioneers and not available for online only auctions. The Auctioneers cannot accept responsibility for any neglect or default in executing or failing to execute telephone bids.
(d) Live Online bidding.
(i) An online bidding service is offered via RoseberysLive, thesaleroom.com and invaluable.com. In completing the bidder registration on these sites, the buyer is agreeing
to Roseberys conditions of sale.
(ii) In the case where a debit or credit card has been used to register the buyer also agrees to authorise Roseberys, if they so wish, to charge the debit or credit card given in part or full payment, including all fees, for items successfully purchased in the auction via the online bidding platforms.
(iii) Please note there is no additional surcharge for any lots purchased via RoseberysLive, whether live bidding or commission bidding. Any lots purchased via thesaleroom.com successful online bidders are charged an additional premium of 5% or invaluable.com will be subject to an additional 3% commission charge + VAT at the rate imposed on the hammer price.
(iv) Roseberys offers online bidding services as a convenience to its clients, but neither Roseberys nor the seller will be responsible to you for errors during or after the sale or failures to execute bids, either live bids or commission bids, placed on the internet or on your mobile device, including, without limitation, errors or failures caused by:
(aa) any loss of connection to the auction being conducted online; (bb) a breakdown or problems with the online bidding software or the web site service provider; and/or (cc) a breakdown or problems with any internet connection, computer, mobile device or system.
(v) By accessing RoseberysLive and using the software provided you are agreeing to the Website Terms and Conditions governing use of our websites. Please ensure you familiarise yourself with these prior to accessing our websites.
11. Warranty of Title and Availability. The seller warrants to the auctioneer and you that the seller is the true owner of the property consigned or is properly authorised by the true owner to consign it for sale and is able to transfer good and marketable title to the property free from any third party claims. No representation or warranties are made by Roseberys or the seller as to whether any lots is subject to copyright or whether they buyer
acquires copyright in any lot.
12. Agency. The auctioneer normally acts as agent only and disclaims any responsibility for default by sellers or buyers.
13. Terms of Sale. The seller acknowledges that Lots are sold subject to the stipulations of these Conditions in their entirety and on the Terms of Consignment as notified to the consignor at the time of the entry of the Lot.
14. Description and Conditions
(a) Whilst we seek to describe lots accurately, it may be impractical for us to carry out exhaustive due diligence on each lot. Prospective buyers are given ample opportunities to view and inspect before any sale and they (and any independent experts on their behalf) must satisfy themselves as to the accuracy of any description of a lot. Buyers are welcome to make an appointment to view any lots listed on an online only auction. Prospective buyers also bid on the understanding that, inevitably, representations or statements by us as to authorship, genuineness, origin, date, age, provenance, condition or estimated selling price involve matters of opinion. We undertake that any such opinion shall be honestly and reasonably held and accept liability for opinions given negligently or fraudulently. Subject to the foregoing neither we the auctioneer nor our employees or agents nor the seller accept liability for the correctness of such opinions and all conditions and warranties, whether relating to description, condition or quality of lots, express, implied or statutory, are hereby excluded. This Condition is subject to the next following
Condition concerning deliberate forgeries and applies save as provided for in paragraph 6
“information to buyers”.
(b) Condition Reports. Reports on the condition of any lot are offered by the Auctioneers as a statement of opinion only, and not of fact. Rosebery Fine Art Ltd are not liable for any errors or omissions contained therein. The buyer must satisfy themselves to the condition of any given lot prior to bidding. Roseberys will not be held responsible for any damage or defect that has not been notified to the buyer. Catalogue illustrations are for guidance only and will not convey full information as to the actual condition of lots.
(c) Where the term (a/f) is used this refers to a lot being ‘as found’, it is used for guidance only and indicates in our opinion there is significant damage or repair to an item, the omission of this term does not indicate there is not significant damage or repair to an item and Roseberys are not liable for the omission of this term.
(d) Private treaty sales made on these premises under these Conditions are deemed to be sales by auction for the purposes of consumer legislation.
15. Forgeries. Notwithstanding the preceding Condition, any Lot which proves to be a deliberate forgery (as defined) may be returned to us by you within 21 days of the auction provided it is in the same condition as when bought, and is accompanied by particulars identifying it from the relevant catalogue description and a written statement of defects. Roseberys may require the buyer to obtain at the buyer’s cost the reports of two independent and recognised experts in the field, mutually acceptable to Roseberys and
the buyer. If we are satisfied from the evidence presented that the Lot is a deliberate forgery we shall refund the money paid by you for the Lot including any buyer’s premium provided that (1) if the catalogue description reflected the accepted view of scholars and experts as at the date of sale or (2) if you personally are not able to transfer a good and marketable title to us, you shall have no rights under this condition. The right of return provided by this Condition is additional to any right or remedy provided by law or by these Conditions of Sale.
16. Online Only Timed Auctions
These following terms are applicable only to sales conducted online only and are to be used in addition to the conditions of sale.
(a) Right to Cancel
(i) If you are a consumer resident in the European Union you have the right to cancel the contract for the purchase of a lot within 14 calendar days without giving any reason.
(ii) The cancellation period will expire after 14 calendar days from the day on which you acquire (or a party nominated by you and is not the shipper) physical possession of the lot.
(iii) To exercise the right to cancel, you must inform us of your decision to cancel this contract by a clear written statement (e.g. a letter sent by post, fax or email), or you may use the cancellation form which can be found on our website or by contacting a member of staff. The communication must be received within 14 calendars days from the day on
which you acquire the lot.
(iv) If you cancel the contract, we will reimburse all payments received from you. As Roseberys are unable to provide a postage or packing service the cost of the initial
delivery or collection is not returnable. In addition the cost of returning the item if you choose to cancel the contract is payable by you.
(v) We may make a deduction from the reimbursement for loss in value of any goods supplied, if the loss is the result of damaged caused by unnecessary handling whilst in your
possession. We will make the reimbursement without undue delay, and not later than
(aa) 14 calendar days after the day we receive back from you any goods supplied, or
(bb) (if earlier) 14 calendar days after the day you provide evidence that you have returned the goods.
(vi) We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is earliest.
Roseberys nor the seller will be responsible to you for errors during or after the online only timed auction or failures to execute bids placed on the internet or on your mobile device, including, without limitation, errors or failures caused by:
(i) any loss of connection to the auction being conducted online;
(ii) a breakdown or problems with the online bidding software or the website
service provider; and/or
(iii) a breakdown or problems with any internet connection, computer, mobile device or system.
17. We shall have the right at our discretion, to refuse admission to our premises or attendance at our auctions by any person.
18. Where a member of the public causes damage to a lot (or part thereof) the Auctioneers reserve the right to:
(a) sell the aforementioned without reserve and to hold that specific individual liable for the amount of any difference between the hammer price and the reserve or low estimate;
(b) hold that specific individual liable for the cost of restoration where appropriate;
(c) hold that specific individual liable for the full amount of the reserve price or lower estimate as applicable.
19 (a) any right to compensation for losses liabilities and expenses incurred in respect of and as a result of any breach of these Conditions and any exclusions provided by them shall be available to the seller and/or the auctioneer as appropriate.
(b) Such rights and exclusions shall extend to and be deemed to be for the benefit of employees and agents of the seller and/or the auctioneer who may themselves enforce them.
20. Any notice to any buyer, seller, bidder or viewer may be given by first class mail or email if provided in which case it shall be deemed to have been received by the addressee 48 hours after posting.
21. Special terms may be used in catalogue descriptions of particular classes of items in which case the descriptions must be interpreted in accordance with any glossary appearing at the commencement of the catalogue.
22. Any indulgence extended to bidders buyers or sellers by us notwithstanding the strict terms of these Conditions or of the Terms of Consignment shall affect the position at the relevant time only and in respect of that particular concession only; in all other respects these Conditions shall be construed as having full force and effect.
23. English law applies to the interpretation of these Conditions.
These terms and conditions are based upon recommended conditions of sale by SOFAA (the Society of Fine Art Auctioneers) and RICS (the Royal Institute of Chartered Surveyors)