Terms and Conditions of Business
The following terms and conditions are based on the model provided by the Royal Institute of Chartered Surveyors by consultation with the Office of Fair Trading. They are designed to provide what is considered reasonable protection to the seller, the auctioneer and the buyer in respect of their duties and liabilities arising in the transactions made within the auction environment of sales of general and specialist fine art and chattels.
The two primary clients that WESTERNHANGER Auctions, has are the vendor and the buyer. Their terms of consignment and conditions of sale have been dealt with individually as separate documents
CONDITIONS OF SALE
Westenhanger Auctions carries out 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.
1. Definitions: In these conditions:
(a) ‘Auctioneer’ means the firm WESTERNHANGER Auctions, 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 Westenhanger auctions 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, 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 the buyer:
(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.
(b) The maker of the highest bid accepted by the auctioneer conducting the sale shall be the buyer at the hammer price and any dispute about a bid shall be settled at the auctioneer’s absolute discretion by re-offering the lot during the course of the auction or otherwise. The auctioneer shall act reasonably in exercising this discretion.
(c) Bidders shall be deemed to act as principals. 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.
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 20%
5. Value Added Tax:
We are not currently charging V.A.T on our buyers or sellers commissions But the saleroom do make a vat charge
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 or in such other way as is agreed by us.
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:
(a) 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 of all lots on your account.
(b) You shall at your own risk and expense take away any lots that you have purchased and paid for no later than five days following the day of the auction after which you shall be responsible for any removal, storage and insurance charges.
(c) No purchase can be claimed or removed until it has been paid for.
8. Remedies for non-payment or failure to collect purchases:
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). Any surplus so arising shall belong to the seller.
(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 5% over the HSBC standard rate on the total amount due to the extent it remains unpaid for more than three 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.
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 bids:
Whilst prospective buyers are strongly advised to attend the auction and are always responsible for any decision to bid for a particular lot and shall be assumed to have carefully inspected and satisfied themselves as to its condition we will if so instructed clearly and in writing execute bids on their behalf. Neither the auctioneer nor our employees or agents shall be responsible for any failure to do so save where such failure is unreasonable. Where two or more commission bids at the same level are recorded we reserve the right in our absolute discretion to prefer the first bid so made.
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.
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. Descriptions and condition:
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 applied to a lot. 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’.
Private treaty sales made under these conditions are deemed to be sales by auction for purposes of consumer legislation.
Notwithstanding the preceding condition, any lot which proves to be a deliberate forgery (as defined) may be returned to us by you within 7 days of the auction (not collection) 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 and FACTUAL EVIDENCE, not just a chosen ‘Opinion’. 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
(i) if the catalogue description reflected the accepted view of scholars and experts as at the date of sale or
(ii) 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 of remedy provided by law or by these ‘Conditions of sale’.
16. We shall have the right at our discretion, to refuse admission to our premises or attendance at our auctions by any person.
17. (i) 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.
(ii) 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.
18. Any notice to any buyer, seller, bidder or viewer may be given by first class mail or email in which case it shall be deemed to have been received by the addressee 48 hours after posting/sending.
19. 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.
20. 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.
21. English law applies to the interpretation of these conditions.
INFORMATION FOR BUYERS
The following informative notes are intended to assist Buyers, particularly those inexperienced or new to our salerooms. All sales are conducted on our printed ‘Conditions of sale’ which are readily available for inspection and normally accompany catalogues. Our staff will be happy to help you if there is anything you do not fully understand.
As auctioneers we usually contract as agents for the seller whose identity, for reasons of confidentiality, is not normally disclosed. Accordingly, if you buy your primary contract is with the seller.
Estimates are designed to help buyers gauge what sort of sum might be involved for the purchase of a particular lot. The lower estimate may represent the reserve price and certainly will not be below it. Estimates do not include the buyer’s premium or VAT (where chargeable). Estimates are prepared some time before the sale and may be altered by announcement before the sale. They are in no sense definitive.
4. Buyers premium:
The ‘Conditions of sale’ oblige buyers to pay a buyer’s premium at 20 % on the hammer price of each lot purchased.
Lots purchased online with the-saleroom.com will attract an additional charge for this service in the sum of 5% of the hammer price plus VAT
6. Condition and description of lots.
We are primarily, agents for the seller. We are dependent on information provided by the seller and whilst we may inspect lots and act reasonably in taking a general view about them we are normally unable to carry out a detailed or any examination of lots in order to ascertain their condition in the way in which it would be wise for a buyer to do. Intending buyers have ample opportunity for inspection of goods and, therefore, accept responsibility for inspecting and investigating lots in which they may be interested. Please note carefully the exclusion of liability for the condition of lots contained in the ‘Conditions of sale’. Neither the seller nor we, as the auctioneers, accept any responsibility for their condition. In particular, mechanical objects of any age are not guaranteed to be in working order.
However, in so far as we have examined the goods and make a representation about their condition, we shall be liable for any defect which that examination ought to have revealed to the auctioneer but which would not have been revealed to the buyer had the buyer examined the goods. Additionally, in specified circumstances lots mis-described because they are ‘deliberate forgeries’ may be returned and repayment made. There is a 7 day time limit from the date of sale, not date of collection or receipt. (The expression ‘deliberate forgery’ is defined in our ‘Conditions of sale’).
7. Electrical goods:
All electrical and mechanical goods are sold as untested and for spares only. We do not sell any such item as safe or in working order and stress to any buyer of such as item that they will have to make their own alterations to the lot in order for it to be used.
8. Export of goods:
Buyers intending to export goods should ascertain (a) whether an export licence is required and (b) whether there is any specific prohibition on importing goods of that character because, e.g. they may contain prohibited materials such as ivory. Ask us if you need help.
9. Bidding in person: Some form of identification with proof of address may be required if you are unknown to us. Bidders may be required to register before the sale commences and lots will be invoiced to the name and address on the registration form. Account transfers will not be recognised or facilitated under any circumstances.
10. Absentee bidding: Commission bids may be left with the auctioneers indicating the maximum amount to be bid excluding buyers’ premium. They will be executed as cheaply as possible having regard to the reserve (if any) and competing bids. If two buyers submit identical commission bids, the auctioneers may prefer the first bid received. If there are genuine reasons why you are unable to leave a Commission Bid and you wish to bid by telephone we may accommodate on lots where your opening bid will be £100.00 or above.
12. Methods of payment: Accounts are due for settlement within five days of the auction. The following methods of payment are acceptable. To avoid undue embarrassment for yourself or our staff, please do not ask for preferential treatment.
(i) Cash. Single payments up to £7500,00 only.
(ii) Debit Card.(iii) Credit Card, we only accept credit or debit cards when customers are present
(iv) Cheques Bank Drafts & Building Society Cheques. No limit. Due to forgeries, we will retain the goods for 7 working days to establish clearance of funds.
(v) Bank Transfer.
Funds to be transferred to:
HSBC BANK Westernhanger auctions
ACCOUNT NUMBER on invoices sent
13. Collection and storage:
Goods can be collected as soon as they are paid for. If goods remain with us and we have no contrary written advice of your intentions the items may be moved to storage and reasonable labour charges levied and storage at the rate of £2 per lot per day thereafter for small items and £10 per lot per day for furniture and large items.
TERMS OF CONSIGNMENT FOR SELLERS
In these terms the words ‘you, ‘yours’, etc. refer to the seller and if the consignment of goods to us is made by an agent we assume that the seller has authorised the consignment and that the consignor has the seller’s authority to contract. Similarly, the words ‘we’, ‘us’, etc. refer to the auctioneers.
2. Commission: standard rate 15 % ,this can be reduced with a full contents sale
Is charged to sellers at varying rates depending values entered
3. Lotting Fee: 2016
Is charged at £5.00 per lot entered sold or unsold , lottage fee includes photography,internet listing,Porterage,sorting,lotting and research, sale notifications and admin
4. Loss and Damage Warranty Charge:
optional 2% of the lower estimate whether sold or unsold
5. Removal costs:
Items for sale must be consigned to the saleroom by any stated deadline and at your expense. We are be able to recommend suitable hauliers but any liability incurred to a carrier for haulage charges is solely your responsibility.
If we consider that the lot should be illustrated on our website we will do so. Illustrations on the internet are free. The copyright in respect of such illustrations shall be the property of us, the auctioneers, as is the text of the catalogue.
7. Minimum bids and our discretion:
All goods are put up for sale without reserve but at the auctioneer’s discretion, unless written instructions as to reserves are received at least 48 hours prior to the commencement of the sale. Reserved goods will normally be offered subject to agreed figures between us before the sale in accordance with clause 8 and unilaterally by ourselves at the time of sale in circumstances the auctioneer feels necessary to protect your interests. We may sell lots below the reserve provided we account to you for the same sale proceeds as you would have received had the reserve been the hammer price. If you specifically give us ‘discretion’ we may accept a bid of up to 10% below the formal fixed reserve.
(a) You are entitled to place prior to the auction a on any lot consigned, being the minimum hammer price at which that lot may be sold. ,
(b) A reserve once set cannot be changed except with our consent.
(c) Where a reserve has been placed only we may bid on your behalf and only up to the reserve (if any) and you may in no circumstances bid personally.
(d) Estimates are not Reserves. Estimates are given as a guide to buyers.
9. Electrical items:
All electrical and mechanical goods are sold as untested and for spares only. We do not sell any such item as safe or in working order and stress to any buyer of such as item that they will have to make their own alterations to the lot in order for it to be used. We reserve the right to dispose of any such goods that we deem not saleable without further reference to the vendor. A minimum fee of £5 plus VAT may be incurred for this service.
10. Soft furnishings:
The sale of soft furnishings is strictly regulated by statute law in the interests of fire safety. Goods found to infringe safety regulations will not be offered and must be removed at your expense. We reserve the right to dispose of unsafe goods as refuse, at your expense and without further reference to the vendor. A minimum fee of £10 per item may be incurred for this service.
Please assist us with accurate information as to the provenance etc. of goods where this is relevant. There is strict liability for the accuracy of descriptions under modern consumer legislation and in some circumstances responsibility lies with sellers if inaccuracies occur. Where we are obliged to return the price to the buyer when the lot is a deliberate forgery under Condition 15 of the ‘Conditions of sale’ and we have accounted to you for the proceeds of sale you agree to reimburse us the sale proceeds. The liability to reimburse the sale proceeds shall not arise where you are acting reasonably and honestly and are unaware of the forgery but we are or ought to have been aware of it.
12. Unsold items:
If a item is unsold you will be advised and it may be re-offered . Where in our opinion an item is unsaleable or we have advised you to collect the item you must arrange to collect the item from the saleroom promptly on being so informed. If goods remain with us and we have no contrary written advice of your reasonable intentions, the items may be moved to storage and reasonable charges levied or disposed of or given to charity.
13. Withdrawn and bought in items:
Once an item has been entered for sale should you choose to withdraw it (pre or post sale) you will be liable to incur a charge of 20% on being bought in or withdrawn after being catalogued. This will be based on the lower estimate.
14. Conditions of sale:
You agree that all goods will be sold on our ‘Conditions of sale’. In particular you undertake that you have the right to sell the goods either as owner or agent for the owner. You undertake to compensate us and any buyer or third party for all losses, liabilities and expenses incurred in respect of and as a result of any breach of this undertaking.
15. Authority to deduct commission and expenses and retain premium and interest:
(a) You authorise us to deduct commission at the stated rate and all expenses incurred for your account from the hammer price and consent to our right to retain beneficially the premium paid by the buyer in accordance with our ‘Conditions of sale’ and any interest earned on the sale proceeds until the date of settlement.
(b) You authorise us in our discretion to negotiate a sale by private treaty in the case of lots unsold at auction while they remain on our premises, in which case the same charges will be payable as if such lots had been sold at auction and so far as appropriate these terms apply.
After sale settlement of the net sum due to you normally takes place after maximum of 31 working days of the sale (by crossed cheque to the seller) unless the buyer has not paid for the goods. In this case no settlement will then be made but we will take your instructions in the light of our ‘Conditions of sale’.
17. Insurance cover and risk:
Unless otherwise instructed in writing, all goods on our premises and in our custody will be held un-insured against the risks of fire, theft following forcible entry, water damage and accidental breakage or damage ,Or which we will make a loss and damage warranty charge at a premium of 2% of the hammer price . We shall not be responsible for damage to or the loss, theft or destruction of any goods not so insured upon the owner’s written instructions. In respect of any article delivered to us if the vendor has in force a policy or policies of insurance in which is specifically mentioned as being insured, whether or not for any agreed sum or value, the vendor shall notify his insurers of and shall himself note our interest as bailee in such policy or policies.
18. Ownership & Indemnity:
The vendor declares that the goods entered are their unencumbered property and that they are free from any hire purchase or financial agreement. The vendor shall duly indemnify us against any claims in connection with any goods sold by us on the vendor’s behalf.
19. Value Added Tax:
A vendor who sends for sale by auction any chattel(s) which is an asset of business must disclose to us whether or not [s]he has a registered VAT number, and thus the number. This information must be supplied to the Auctioneer on or prior to delivery of goods
20. Clients’ money:
You are advised that all clients’ money is held in the following account.
Westenhanger auction ( client account) held at H.S.B.C