Conditions of Sale of Grisebach GmbH (11/2015)
The Auction House
The auction will be implemented on behalf of Grisebach GmbH – referred to hereinbelow as “Grisebach”. The auctioneer will be acting as Grisebach’s representative. The auctioneer is an expert who has been publicly appointed in accordance with Section 34b paragraph 5 of the Gewerbeordnung (GewO, German Industrial Code). Accordingly, the auction is a public auction as defined by Section 474 paragraph 1 second sentence and Section 383 paragraph 3 of the Bürgerliches Gesetzbuch (BGB, German Civil Code).
As a general rule, the auction will be performed on behalf of the Consignor, who will not be named. Solely those works of art owned by Grisebach shall be sold at auction for the account of Grisebach. Such items will be marked by an “E” in the catalogue.
The auction shall be performed on the basis of the present Conditions of Sale. The Conditions of Sale are published in the catalogue of the auction and on the internet; furthermore, they are posted in an easily accessible location in the Grisebach spaces. By submitting a bid, the buyer acknowledges the Conditions of Sale as being binding upon it.
Catalogue, Pre-Sale Exhibition and Date of the Auction
Prior to the auction date, an auction catalogue will be published. This provides general orientation in that it shows images of the works of art to be sold at auction and describes them. Additionally, the catalogue will provide information on the work’s creator(s), technique, and signature. These factors alone will define the characteristic features of the work of art. In all other regards, the catalogue will not govern as far as the characteristics of the work of art or its appearance are concerned (color). The catalogue will provide estimated prices in EUR amounts, which, however, serve solely as an indication of the fair market value of the work of art, as does any such information that may be provided in other currencies.
Grisebach will prepare the catalogue to the best of its knowledge and belief, and will exercise the greatest of care in doing so. The catalogue will be based on the scholarly knowledge published up until the date of the auction, or otherwise generally accessible, and on the information providedby the Consignor. Seriously interested buyers have the opportunity to request that Grisebach provide them with a report outlining the condition of the work of art (condition report), and they may also review any expert appraisals that Grisebach may have obtained.
The information and descriptions contained in the catalogue, in the condition report or in expert appraisals are estimates; they do not constitute any guarantees, in the sense as defined by Section 443 of the Bürgerliches Gesetzbuch (BGB, German Civil Code), for the characteristics of the work of art.
Grisebach is entitled to correct or amend any information provided in the catalogue by posting a notice at the auction venue and by having the auctioneer make a corresponding statement immediately prior to calling the bids for the work of art concerned.
2. Pre-sale exhibition
All of the works of art that are to be sold at auction will be exhibited prior to the sale and may be viewed and inspected. The time and date of the pre-sale exhibition, which will be determined by Grisebach, will be set out in the catalogue. The works of art are used and will be sold “as is”, in other words in the condition they are in at the time of the auction.
Grisebach will determine the venue and time at which the auction is to be held. It is entitled to modify the venue and the time of the auction, also in those cases in which the auction catalogue has already been sent out.
Calling the Auction
1. Bidder number
Grisebach will issue a bidder number to each bidder. Each bidder is to acknowledge the Conditions of Sale as being binding upon it. At the latest twenty-four (24) hours prior to the start of the auction, bidders as yet unknown to Grisebach must register in writing, providing a written bank reference letter of recent date, so as to enable Grisebach to issue a bidder number to them.
At the auction, only the bids submitted using a bidder number will be considered.
2. Item call-up
The auction of the individual work of art begins by its being called up by the auctioneer. The auctioneer is entitled to call up the works of art in a different sequence than that published in the catalogue, to join catalogue items to form a lot, to separate a lot into individual items, and to pull an item from the auction that has been given a lot number.
When the work of art is called up, its price will be determined by the auctioneer, denominated in euros. Unless otherwise determined by the auctioneer, the bid increments will amount to 10 % of the respective previous bid.
Floor bids will be submitted using the bidder number. A sale and purchase agreement will be concluded by the auctioneer bringing down the hammer to end the bidding process. Where a bidder wishes to submit bids in the name of a third party, it must notify Grisebach of this fact at the latest twenty-four (24) hours prior to the auction commencing, submitting a corresponding power of attorney from that third party. In all other cases, once the work of art has been knocked down, the sale and purchase agreement will be concluded with the person who has placed the bid.
b) Written absentee bids
Subject to Grisebach consenting to this being done, bids may also be submitted in writing using a specific form developed for this purpose. The bidder must sign the form and must provide the lot number, the name of the artist, the title of the work of art and the hammer price it wishes to bid therefor. The bidder must acknowledge the Conditions of Sale as being binding upon it. By placing a written bid, the bidder instructs Grisebach to submit such bid in accordance with its instructions. Grisebach shall use the amount specified in the written bid only up to whatever amount may be required to outbid another bidder. Upon the auctioneer knocking down the work of art to a written bid, a sale and purchase agreement shall be concluded on that basis with the bidder who has submitted such written bid.
Where several written bids have been submitted in the same amount for the same work of art, the bid received first shall be the winning bid, provided that no higher bid has been otherwise submitted or is placed as a floor bid.
c) Phoned-in absentee bids
Bids may permissibly be phoned in, provided that the bidder applies in writing to be admitted as a telephone bidder, and does so at the latest twenty-four (24) hours prior to the auction commencing, and furthermore provided that Grisebach has consented. The bidder must acknowledge the Conditions of Sale as being binding upon it. Bids phoned in will be taken by a Grisebach employee present at the auction on the floor, and will be submitted in the course of the auction in keeping with the instructions issued by the bidder. The bid so submitted by the bidder shall cover exclusively the hammer price, and thus shall not comprise the buyer’s premium, any allocated costs that may be charged, or turnover tax. The bid must unambiguously designate the work of art to which it refers, and must wherever possible provide the lot number, the artist and the title of the work.
Grisebach may make a recording of bids submitted by telephone. By filing the application to be admitted as a telephone bidder, the bidder declares its consent to the telephone conversation being recorded. Unless it is required as evidence, the recording shall be deleted at the latest following the expiry of three (3) months.
d) Absentee bids submitted via the internet
Bids may be admissibly submitted via the internet only if Grisebach has registered the bidder for internet bidding, giving him a user name and password, and if the bidder has acknowledged the Conditions of Sale as being binding upon it. The registration shall be non-transferable and shall apply exclusively to the registered party; it is thus entirely personal and private. The user is under obligation to not disclose to third parties its user name or password. Should the user culpably violate this obligation, it shall be held liable by Grisebach for any damages resulting from such violation.
Bids submitted via the internet shall have legal validity only if they are sufficiently determinate and if they can be traced back to the bidder by its user name and password beyond any reasonable doubt. The bids transmitted via the internet will be recorded electronically. The buyer acknowledges that these records are correct, but it does have the option to prove that they are incorrect. In legal terms, Grisebach shall treat bids submitted via the internet at a point in time prior to the auction as if they were bids submitted in writing. Bids submitted via the internet while an auction is ongoing shall be taken into account as if they were floor bids.
4. Knock down
The work of art is knocked down to the winning bidder if, following three calls for a higher bid, no such higher bid is submitted. Upon the item being knocked down to it, this will place the bidder under obligation to accept the work of art and to pay the purchase price (Section 4 Clause 1). The bidder shall not be named.
Should the bids not reach the reserve price set by the Consignor, the auctioneer will knock down the work of art at a conditional hammer price. This conditional hammer price shall be effective only if Grisebach confirms this bid in writing within three (3) weeks of the day of the auction. Should another bidder submit a bid in the meantime that is at least in the amount of the reserve price, the work of art shall go to that bidder; there will be no consultations with the bidder to whom the work of art has been knocked down at a conditional hammer price.
The auctioneer is entitled to refuse to accept a bid, without providing any reasons therefor, or to refuse to knock down a work of art to a bidder. Where a bid is refused, or where a work of art is not knocked down to a bidder, the prior bid shall continue to be valid.
The auctioneer may revoke any knock-down and may once again call up the work of art in the course of the auction to ask for bids; the auctioneer may do so in all cases in which
– The auctioneer has overlooked a higher bid that was submitted in a timely fashion, provided the bidder so overlooked has immediately objected to this oversight;
– A bidder does not wish to be bound by the bid submitted; or
– There are any other doubts regarding the knock-down of the work of art concerned.
Where the auctioneer exercises this right, any knock-down of a work of art that has occurred previously shall cease to be effective.
The auctioneer is authorized, without being under obligation of giving notice thereof, to also submit bids on behalf of the Consignor until the reserve price agreed with the Consignor has been reached, and the auctioneer is furthermore authorized to knock down the work of art to the Consignor, citing the consignment number. In such event, the work of art shall go unsold.
Purchase Price, Payment, Default
1. Purchase price
The purchase price consists of the hammer price plus buyer’s premium. Additionally, lump sum fees may be charged along with statutory turnover tax.
A. a) For works of art that have not been specially marked in the catalogue, the purchase price will be calculated as follows:
For buyers having their residence in the community territory of the European Union (EU), Grisebach will add a buyer’s premium of 30 % to the hammer price. A buyer’s premium of 25 % will be added to that part of the hammer price that is in excess of EUR 500,000. A buyer’s premium of 20 % will be added to that part of the hammer price that is in excess of EUR 1,000,000. This buyer’s premium will include all lump sum fees as well as the statutory turnover tax (margin scheme pursuant to Section 25a of the German Turnover Tax Act). These taxes and fees will not be itemized separately in the invoice. Buyers to whom delivery is made within Germany, as defined by the German Turnover Tax Act, and who are entitled to deduct input taxes, may have an invoice issued to them that complies with the standard taxation provisions as provided for hereinabove in paragraph
B. Such invoice is to be requested when applying for a bidder number. It is not possible to perform any correction retroactively after the invoice has been issued.
b) Works of art marked by the letter “N” (for Import) are works of art that have been imported from outside the EU for sale. In such event, the import turnover tax advanced, in the amount of currently 7 % on the hammerprice, will be charged in addition to the buyer’s premium.
B. For works of art marked in the catalogue by the letter “R” behind the lot number, the purchase price is calculated as follows:
a) Buyer’s premium
Grisebach will add a buyer’s premium of 25% to the hammer price. A buyer’s premium of 20 % will be added to that part of the hammer price that is in excess of EUR 500,000. A buyer’spremium of 15 % will be added to that part of the hammer price that is in excess of EUR 1,000,000.
b) Turnover tax
The hammer price and the buyer's premium will each be subject to the statutory turnover tax in the respectively applicable amount (standard taxation provisions, marked by the letter "R"). Currently, this amounts to 19 %.
c) Exemption from turnover tax
No turnover tax will be charged where works of art are sold that are acquired in states within the EU by corporations and exported outside of Germany, provided that such corporations have provided their turnover tax ID number in applying for and obtaining their bidder number. It is not possible to register this status after the invoice has been issued, and more particularly, it is not possible to perform a correction retroactively. No turnover tax shall be charged for the sale of works of art that are delivered, pursuant to Section 6 paragraph 4 of the Umsatzsteuergesetz (UStG, German Turnover Tax Act), to destinations located in states that are not a Member State of the EU, provided that their buyers are deemed to be foreign purchasers and have proved this fact in accordance with Section 6 paragraph 2 of the German Turnover Tax Act. The buyer shall bear any import turnover tax or duties that may accrue abroad.
The above provisions on turnover tax correspond to the legislative status quo and are in line with the practice of the Tax and Revenue Authorities. They are subject to change without notice.
2. Due date and payment
The purchase price shall be due for payment upon the work of art being knocked down to the buyer. The purchase price shall be paid in euros to Grisebach. Cheques and any other forms of non-cash payment are accepted only on account of performance.
Payment of the purchase price by set-off is an option only where the claims are not disputed or have been finally and conclusively determined by a court’s declaratory judgment.
Where payment is made in a foreign currency, any exchange rate risk and any and all bank charges shall be borne by the buyer.
In cases in which the purchase price has not been paid within two (2) weeks of the invoice having been received, the buyer shall be deemed to be defaulting on the payment. Upon the occurrence of such default, the purchase price shall accrue interest at 1 % per month, notwithstanding any other claims to compensation of damages that may exist. Two (2) months after the buyer has defaulted on the purchase price, Grisebach shall be entitled – and shall be under obligation to do so upon the Consignor’s corresponding demand – to provide to the Consignor the buyer’s name and address.
Where the buyer has defaulted on the purchase price, Grisebach may rescind the agreement after having set a period of grace of two (2) weeks. Once Grisebach has so rescinded the agreement, all rights of the buyer to the work of art acquired at auction shall expire.
Upon having declared its rescission of the agreement, Grisebach shall be entitled to demand that the buyer compensate it for its damages. Such compensation of damages shall comprise in particular the remuneration that Grisebach has lost (commission to be paid by the Consignor and buyer’s premium), as well as the costs of picturing the work of art in the catalogue and the costs of shipping, storing and insuring the work of art until it is returned or until it is once again offered for sale at auction.
Where the work of art is sold to a bidder who has submitted a lower bid, or where it is sold at the next auction or the auction after that, the original buyer moreover shall be held liable for any amount by which the proceeds achieved at that subsequent auction are lower than the price it had bid originally.
Grisebach has the right to exclude the defaulting buyer from future auctions and to forward the name and address of that buyer to other auction houses so as to enable them to exclude him from their auctions as well.
Post Auction Sale
In the course of a two-month period following the auction, works of art that have gone unsold at the auction may be acquired through post auction sales. The post auction sale will be deemed to be part of the auction. The party interested in acquiring the work of art is to submit a bid either in person, by telephone, in writing or via the internet, citing a specific amount, and is to acknowledge the Conditions of Sale as being binding upon it. The sale and purchase agreement shall come about if Grisebach accepts the bid in writing within three weeks of its having been received.
The provisions regarding the purchase price, payment, default, pick-up and liability for works of art acquired at auction shall apply mutatis mutandis.
Acceptance of the Work of Art Purchased at Auction
The buyer is under obligation to pick up the work of art at the latest one (1) month after it has been knocked down to the buyer. However, Grisebach is not under obligation to surrender to the buyer the work of art acquired at auction prior to the purchase price set out in the invoice having been paid in full.
Title to the work of art shall devolve to the buyer only upon the purchase price having been paid in full.
Grisebach shall store the work of art acquired at auction until it is picked up, doing so at the longest for one (1) month, and shall insure it at its own cost, the amount insured being equal to the purchase price. Thereafter, Grisebach shall have the right to store the work of art with a specialized fine art shipping agent and to insure it there. At its choice, Grisebach may instead store the work of art in its own premises, charging a monthly lump-sum fee of 0.1 % of the purchase price for the costs of storage and insurance.
Where the buyer instructs Grisebach in writing to ship to it the workof art acquired at auction, subject to the proviso that the purchaseprice has been paid in full, Grisebach shall procure the appropriate shipment of the work of art to the buyer, or to any recipient the buyer may specify, such shipment being performed by a specialized fine art shipping agent; Grisebach shall take out corresponding
shipping insurance. The buyer shall bear the costs of packaging and shipping the work of art as well as the insurance premium
4. Default of acceptance
Where the buyer fails to pick up the work of art within one (1) month (Clause 1) and fails to issue instructions for the work of art to be shipped to it (Clause 3), it shall be deemed to be defaulting on acceptance.
5. Sale to other parties
Should the buyer, prior to having paid the purchase price in full, sell the work of art it has acquired at auction, it hereby assigns to Grisebach, as early as at the present time and on account of performance, the entirety of all claims to which it is entitled under such onward sale, and Grisebach accepts such assignment. Insofar as the claims so assigned are in excess of the claims to which Grisebach is entitled, Grisebach shall be under obligation to immediately reassign to the buyer that part of the claim assigned to it that is not required for meeting its claim.
1. Characteristics of the work of art
The work of art is sold in the condition it is in at the time it is knocked down to the buyer, and in which it was viewed and inspected. The other characteristic features of the work of art are comprised of the statements made in the catalogue (Section 2 Clause 1) regarding the work’s creator(s), technique and signature. These statements are based on the scholarly knowledge published up until the date of the auction, or otherwise generally accessible, and on the information provided by the Consignor. No further characteristic features are agreed among the parties, in spite of the fact that such features may be described or mentioned in the catalogue, or that they may garnered from information provided in writing or orally, from a condition report, an expert appraisal or the images shown in the catalogue. No guarantee (Section 443 of the Bürgerliches Gesetzbuch (BGB, German Civil Code)) is provided for the work of art having any characteristic features.
2. Buyer’s rights in the event of a defect of title being given (Section 435 of the German Civil Code)
Should the work of art acquired be impaired by a defect of title because it is encumbered by rights of third parties, the buyer may, within a period of two (2) years (Section 438 paragraph 4 and 5 of the Bürgerliches Gesetzbuch (BGB, German Civil Code)), rescind the agreement based on such defect of title, or it may reduce the purchase price (Section 437 no. 2 of the German Civil Code). In all other regards, the buyer’s rights as stipulated by Section 437 of the Ger-man Civil Code are hereby contracted out, these being the right to demand the retroactive performance of the agreement, the compensation of damages, or the reimbursement of futile expenditure, unless the defect of title has been fraudulently concealed.
3. Buyer’s rights in the event of a material defect being given (Section 434 of the German Civil Code)
Should the work of art deviate from the characteristic features agreed (work’s creator(s), technique, signature), the buyer shall be entitled to rescind the agreement within a period of two (2) years after the work of art has been knocked down to it (Section 438 paragraph 4 of the Bürgerliches Gesetzbuch (BGB, German Civil Code)). The buyer shall be reimbursed for the purchase price it has paid (Section 4 Clause 1 of the Conditions of Sale), concurrently with the return of the purchased object in unaltered condition, such return being effected at the registered seat of Grisebach.
Claims to any reduction of the purchase price (Section 437 no. 2 of the German Civil Code), to the compensation of damages or the reimbursement of futile expenditure (Section 437 no. 3 of the German Civil Code) are hereby contracted out. This exclusion of liability shall not apply should Grisebach have fraudulently concealed the defect.
The right to rescind the agreement for material defects shall be contracted out wherever Grisebach has sold the work of art for the account of the Consignor and has exercised, to the best
of its ability, the greatest possible care in identifying the work’s creator(s), technique and signature listed in the catalogue, provided there was no cause to doubt these statements’ being correct. In such event, Grisebach enters into obligation to reimburse the buyer for the buyer’s premium, any allocated costs that may have been charged, and turnover tax.
Moreover, Grisebach shall assign to the buyer all of the claims vis-à-vis the Consignor to which it is entitled as a result of the defects of the work of art, providing the Consignor’s name and address to the buyer. Grisebach shall support the buyer in any manner that is legally available to it and that it is able to apply in enforcing such claims against the Consignor.
4. Errors in the auction proceedings
Grisebach shall not be held liable for any damages arising in connection with bids that are submitted orally, in writing, by telephone or via the internet, unless Grisebach is culpable of having acted with intent or grossly negligently. This shall apply in particular to the telephone, fax or data connections being established or continuing in service, as well as to any errors of transmission, transfer or translation in the context of the means of communications used, or any errors committed by the employees responsible for accepting and forwarding any instructions. Grisebach shall not be held liable for any misuse by unauthorized third parties. This limitation of liability shall not apply to any loss of life, limb or health.
5. Statute of limitations
The statutory periods of limitation provided for by Section 438 paragraph 1 Clause 3 of the Bürgerliches Gesetzbuch (BGB, German Civil Code) (two years) shall apply where the statute of limitations of claims for defects is concerned.
1. Collateral agreements
Any modifications of the present Conditions of Sale that may be made in an individual case, or any collateral agreements, must be made in writing in order to be effective.
2. Translations of the Conditions of Sale
Insofar as the Conditions of Sale are available in other languages besides German, the German version shall govern in each case.
3. Governing law
The laws of the Federal Republic of Germany shall exclusively apply. The United Nations Convention on the International Sale of Goods shall not apply.
4. Place of performance
Insofar as it is possible to agree under law on the place of performance and the place of jurisdiction, this shall be Berlin.
5. Severability clause
Should one or several provisions of the present Conditions of Sale be or become invalid, this shall not affect the validity of the other provisions. Instead of the invalid provision, the corresponding statutory regulations shall apply.