AGB Auktionshaus Kendzia, Hamburg
Auction conditions
By submitting a bid or placing a written order, the Buyer (hereinafter also referred to as "Bidder") accepts the following auction conditions as legally binding:
1. The auctioneer
The auction is a public auction. It will be implemented by the auctioneers of Auktionshaus Kendzia House (hereinafter referred to as "Auctioneer") as a commission agent in their own name, but on account of the Consignor, who remains unnamed.
2. Inspection, Catalogue
(a) All art objects that are put up for auction (hereinafter referred to as "Auction Goods") may be inspected and examined prior to the auction sale. They are used and will be auctioned in the condition in which they are at the time of the auction sale. Replacement or spare pieces in the sense of a subsequent delivery according to § 439 BGB (German Civil Code) do not exist.
(b) The descriptions provided in the catalogue, in particular the indication of dimensions, weight, origin, age, completeness, condition etc., are recorded to the best of our knowledge and belief. They are based upon the information provided by the Consignor as well as on the information published or generally accessible up to the time of the auction sale.
3. Condition of the Auction Goods
(a) The Auctioneer does not assume any guarantee in the sense as defined by § 443 BGB (German Civil Code) for the characteristic features of Auction Goods.
(b) Only the details regarding authorship, technique and signature of the Auction Goods determine their characteristic features. All other details are for information purposes only and will not be regarded as characteristic features.
(c) The state of preservation of the Auction Goods is not consistently mentioned in the auction catalogue; missing information also does not constitute any characteristic features. The same applies to conditions reports of the Auction Goods or any other oral or written information.
(d) The Auctioneer shall be entitled to correct or amend the catalogue details orally by the Auctioneer by posting a notice at the place of the auction and as well immediately prior to calling the bids for the auction sale of the individual Auction Goods.
4. Auction
(a) The Auctioneer sets the starting price. The bid is incremented by 10 % (ten per cent) of the previous bid, unless the Auctioneer determines otherwise, but at least by 10.00 EUR.
(b) The bids are legally binding. The Auctioneer may reject a bid or refuse the knockdown without giving reasons, in particular if a Bidder is not known to the Auctioneer or does not provide security until the beginning of the auction sale. In this case, the previous bid remains binding.
(c) Bidders who are unable to be present at the auction sale or who do not wish to submit their bid themselves may instruct the Auctioneer in writing to bid on specific Auction Goods on their behalf. Only the lot number is authoritative in the written order, not the title listed in the catalogue.
(d) Alternatively, these Bidders may place a bid themselves by telephone during the current auction sale after having placed an order in writing. The Auctioneer cannot guarantee that a telephone connection will be established.
(e) Only Bidders to whom the Auctioneer has issued a bidder number may submit their written bids via fax or e-mail.
(f) Bids via e-mail shall only become effective after explicit confirmation by the Auctioneer. The e-mail with the written order must be received at the latest 24 hours before the beginning of the auction sale.
(g) The right of revocation and return for distance-selling contracts (Widerrufs- und Rückgaberecht bei Fernabsatzverträgen) does not apply to written bids, telephone bids and bids by e-mail. A right of revocation and/or return of the successful bidder in the sense as defined by §§ 312b sqq., 355 sqq. BGB (German Civil Code) shall not apply.
(h) The Auctioneer shall not be liable for any damages in connection with the submission of oral, written, telephone or Internet bids, unless he is culpable of having acted with intent or gross negligence. This applies in particular to the establishment or existence of telephone, fax or data connections as well as to transmission or transmission errors within the scope of the means of communication used. This limitation of liability does not apply to any damage to life, body or health.
(i) New Bidders will only be accepted as bidders after they have provided sufficient proof of identity (copy of valid official photo ID).
(j) The Auctioneer reserves the right to combine the Auction Goods into lots, to separate them and, if there is a special reason, to offer them out of sequence than published in the auction catalogue or withdraw them.
5. Surcharge
(a) A sale and purchase contract is closed with the successful Bidder by the knockdown of the Auctioneer. The Auction Good is knocked down if no higher bid is submitted after three calls. If several Bidders submit the same written bid, the chronological order of the bids received.
(b) If a higher bid submitted on time is mistakenly overlooked and the Bidder immediately complains about this, the Auctioneer may withdraw the knockdown and offer the item again. If the Auctioneer exercises this right, any knockdown of this Auction Good that has occurred previously shall be considered as null and void.
(c) If a highest Bidder does not wish to accept his bid, the Auctioneer may nevertheless knock him down and demand fulfilment of the sale and purchase contract. Instead, the Auctioneer may also knock down the immediately preceding bid or call out the item anew. If the Auctioneer exercises this right, any knockdown of this Auction Good that has occurred previously shall be considered as null and void.
(d) If the reserve price agreed with the Consigner is not reached, the Auctioneer may knock down the Auction Good subject to reservation. The successful Bidder is bound to a knockdown subject to reservation for four weeks. If he does not receive the unconditional knockdown within this period, his bid expires. If a reservation is not approved by the Consignor and another Bidder submits a bid in the amount of the reserve price, then this Bidder receives the knockdown without consultation with the reservation Bidder.
(e) The Auctioneer is entitled, without having to notify the Consignor, to submit bids for the Consignor until a reserve price agreed with the Consignor has been reached and to knock down the Auction Goods to the Consignor, quoting the consignment number. The Auction Goods shall then remain unsold.
(f) The knockdown obliges the Bidder to accept the Auction Goods immediately and to pay the purchase price. Upon acceptance of the bid, the risk of possible damage to or loss of the Auction Goods shall pass to the Buyer. Title to the Auction Goods shall not pass to the Buyer until the purchase price has been paid in full and the Auction Goods have been handed over. Each Buyer acquires in his own name on his own behalf and is responsible for his bidder number. An assignment is not recognized.
6. Purchase price
(a) The purchase price shall consist of the hammer price and a Buyer's premium of 16 % (sixteen per cent). The respective statutory value added tax (V.A.T.) shall be levied on the Buyer's premium. Invoices issued during or immediately after the auction sale must be checked by the Auctioneer. In this respect, the Auctioneer reserves the right to object to erroneous invoicing.
(b) The purchase price is due immediately after the knockdown and the handing over of the invoice and is to be paid in cash to the Auctioneer if the successful Bidder was present at the auction sale; otherwise the payment is due and payable within ten days of the invoice date. Cheques will only be accepted as payment after they have been unconditionally credited to the Auctioneers's bank account and all bank expenses have been charged. Settlement of the purchase price by offsetting is only permissible with undisputed or legally established claims.
(c) If the purchase price has not been paid within two weeks of receipt of the invoice, default shall occur. In the event of default, the Auctioneer is entitled to assert the entire purchase price in his own name against the Buyer in court.
(d) The Auctioneer shall be entitled two months after the default has occurred and, at the request of the Consignor, shall be obliged to provide the Consignor with the name and address of the successful Bidder.
7. Acceptance of the Auction Goods
(a) Place of performance for the transfer of ownership of the Auction Goods is the business premises of the Auctioneer. Title to the Auction Goods shall not pass to the Buyer until the purchase price has been paid in full. The Auctioneer is not obliged to surrender the Auction Goods to the Buyer before the invoice amount has been paid in full.
(b) If the successful Bidder does not collect the Auction Goods within fourteen days of the auction sale or does not place an order for shipment, he shall be in default of acceptance. The Auctioneer may then store the Auction Goods without further reminder at the cost and risk of the successful Bidder with a forwarding agent and have them insured. Purchased but stored items will only be delivered after full payment of the costs incurred.
(c) In the event that the successful Bidder resells the Auction Goods before he has paid the purchase price in full, he hereby assigns all claims from the resale to the Auctioneer, who hereby accepts the assignment. The Auctioneer is obliged to immediately re-assign to the Bidder the part of the assigned claims which exceeds his claims against the Bidder.
8. Shipping of the Auction Goods
(a) Packaging and shipping of the Auction Goods shall take place at the cost and risk of the successful Bidder and only after the order has been placed by the successful Bidder in text form (fax, letter, e-mail, SMS) and confirmed by the Auctioneer. The Auctioneer reserves the right to refuse shipment of the Auction Goods.
(b) After full payment of the purchase price, the Auctioneer shall organize proper shipping of the Auction Goods by courier or forwarding agent to the Buyer or the recipient named by him.
(c) The costs for packaging, transport and, if applicable, insurance will be calculated on the basis of the size, purchase price and sensitivity of the Auction Goods. Packing and shipping will only take place after payment of all costs for packing, shipping and, if applicable, insurance.
9. Right of withdrawal of the auctioneer
(a) If the successful bidder is in default with his obligation to pay for or accept an item purchased by auction, the auctioneer may withdraw from the purchase contract after setting the successful bidder a period of grace of two weeks. Upon rescission, all rights of the successful Bidder to the acquired Auction Goods shall expire.
(b) The Auctioneer is entitled, after declaring his withdrawal from the sale and purchase contract, to claim damages from the successful Bidder for non-performance and to resell the item at the expense of the successful Bidder or to sell it to a Bidder who has submitted a lower bid. In this case, the successful Bidder shall be liable for any loss of proceeds. However, he is not entitled to any additional proceeds and will not be admitted to another bid. The statutory rights of the Auctioneer arising from the default of the Buyer shall remain unaffected.
10. Liability
In all cases of contractual or statutory claims for damages by an Auctioneer or another participant at a preview or auction against the Auctioneer, the latter shall only be responsible for having acted with intent or gross negligence. This limitation of liability does not apply to damages to life, body or health.
11. Post-auction sale
(a) During a period of two months following the auction sale, unsold Auction Goods may be purchased through post-auction sale. The post-auction sale is considered part of the auction sale.
(b) The interested party must submit a bid with a specific amount, either in person, by telephone, in writing or via internet and accept these conditions of sale as legally binding. The sale and purchase contract shall be closed when the Auctioneer accepts the bid in writing within three weeks after its receipt.
(c) The provisions on purchase price, payment, default, acceptance and liability for Auction Goods acquired at the auction sale shall apply accordingly.
12. Buyer's rights
(a) If the acquired Auction Goods have a defect in title because of third-party rights in it, the Buyer may withdraw from the sale and purchase contract or reduce the purchase price due to this defect in title within a period of two years. In all other respects, the Buyer's rights to compensation of damages or reimbursement of futile expenses shall be excluded, unless the defect of title has been fraudulently concealed.
(b) If the acquired Auction Goods deviate from the characteristic features (authorship, technique and signature), the Buyer may withdraw from the sale and purchase contract within two years of the acceptance of the bid. The Buyer shall be reimbursed the purchase price including the Buyer's premium and the value added tax on it back concurrently against return of the Auction Goods in unchanged condition at the Auctioneer's place of business.
Claims to any reduction of the purchase price, for damages or for compensation of futile expenses are excluded. This exclusion of liability shall not apply if the Auctioneer has fraudulently concealed the defect.
(c) The right of withdrawal is excluded if the Auctioneer has exercised to the best of his ability the greatest possible care in determining the authorship, technique and signature of the Auction Goods mentioned in the auction catalogue and there were no reasons to doubt the correctness of this information.
(d) In the event of deviations from the catalogue details, which significantly reduce the value or suitability of the Auction Goods and which are presented by the Buyer in a justified manner within one year of handover of the Auction Goods, the Auctioneer undertakes to assert his rights in court against the Consignor. In the event of a successful claim against the Consignor, the Auctioneer shall reimburse the Buyer exclusively for the entire purchase price.
13. Final provisions
(a) German law shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(b) Place of performance and place of jurisdiction shall be Hamburg, insofar as this can be legally agreed.
(c) All amendments to these Auction Conditions or collateral agreements must be agreed in writing. This shall also apply to the cancellation of this clause.
(d) Should one of the provisions be or become invalid in whole or in part, all other provisions shall remain unaffected. Instead of the invalid provision the corresponding statutory regulations shall apply.
(e) The Auctioneer is neither obliged nor willing to participate in dispute settlements proceedings before a consumer board.
Consignment conditions
The Consignor accepts the following terms and conditions of consignment as binding for the consignment of art objects to be auctioned by Auktionshaus Kendzia:
1. Auctioneer
(a) Auktionshaus Kendzia (hereinafter referred to as "Auctioneer") auctions publicly as commission agent in its own name and for the account of the Consignor (or principal). The Consignor is bound to his consignment until the auction sale has taken place.
(b) Unless otherwise agreed, the Auctioneer is entitled to sell unsold art objects (hereinafter referred to as "Auction Goods") by post-auction sale contracts within a period of three months after the auction sale. The Auction Conditions and these Consignment Conditions shall apply mutatis mutandis to the sale on the post-auction sales of the Auction Goods.
2. Consignment
(a) The Consignor affirms that he is the legal owner of the Auction Goods with the right of disposal or that he is authorized by the owner of the Auction Goods to act on his behalf. The Auction Goods are used.
(b) The Consignor shall be liable to the Auctioneer for material defects and defects in title of the Auction Goods in corresponding application of the law on sales.
(c) The Consignor shall pay the Auctioneer 16 % (sixteen per cent) of the hammer price as seller's premium plus the respective statutory value added tax. Official and statutory levies shall be borne by the Consignor.
(d) Costs for photos shall be charged to the Consignor at a rate of EUR 5-10 per photo plus statutory value added tax; costs for cleaning and repairing of the Auction Goods shall be charged to the Consignor pro rata.
(e) If the Consignor withdraws the consignment in whole or in part for reasons for which the Auctioneer is not responsible, he shall pay the Auctioneer a damage compensation of 10 % (ten per cent) of the estimate plus the applicable statutory value added tax. The Consignor shall be entitled to prove that no damage or only minor damage has occurred.
3. Auction
(a) The Auction Goods shall be auctioned off at a minimum of 3/4 (three quarters) of the estimated prices (taxes) printed in the catalogue or at the minimum prices (reserve) agreed overleaf. A subsequent increase of the minimum price is excluded. If there are no bids in the auction sale, the Auctioneer may call the Auction Goods up to the amount of the minimum price (reserve).
(b) For unsold Auction Goods, the Auctioneer may charge the Consignor an additional 1 % (one per cent) of the estimate for insurance costs in addition to the agreed ancillary costs.
4. Liability, storage, insurance
(a) The Consignor must deliver the Auction Goods to the Auctioneer at his own expense and risk. The Consignor must collect unsold Auction Goods from the Auctioneer upon request. The Consignor shall bear all costs for shipping, shipping insurance as well as for any customs and clearance costs of the forwarder, etc. The Consignor shall be liable for the costs of shipping, shipping insurance as well as for any customs and clearance costs of the forwarder.
(b) The auctioneer shall insure the Auction Goods against burglary/theft, fire and damage caused by tap water at his own expense for the duration of his custody equaling to the amount of the estimate. For other damages, in particular to frames, the Auctioneer is only liable in the case of havingacted with intent or gross negligence. This limitation of liability does not apply to damages to life, body or health. The storage of packaging is not possible.
(c) The Auctioneer's storage and insurance obligation shall end if the Consignor has not collected the unsold Auction Goods within three months of the date of the auction sale.
(d) If the Consignor does not collect the unsold Auction Goods within three months, the Auctioneer may store them at the Consignor's expense himself or at an art forwarding company and insure them in accordance with the estimates. In the event of loss or damage, the Auctioneer shall only be liable for having acted with intent or gross negligence. This limitation of liability does not apply to damages to life, body or health.
5. Payment of the auction proceeds
(a) After and insofar as the proceeds have been received by the Auctioneer, the Auctioneer shall send the invoice to the Consignor within five weeks after the auction sale. The Auctioneer shall then transfer the proceeds of the auction less the seller's premium and any expenses to the Consignor in accordance with the Consignor's instructions. Any bank expenses shall be borne by the payee.
(b) If a buyer of Auction Goods does not pay and the Auctioneer therefore does not receive the proceeds from the auction, the Auctioneer may name the Buyer even after notification of the execution of the order to the Consignor without legal disadvantages. If the Auctioneer has already handed over the Auction Goods to the Buyer, the Auctioneer shall be liable to the Consignor for the proceeds.
6. Final provisions
(a) This contract contains all agreements between the Consignor and the Auctioneer. The Auction Conditions binding on the Consignor and the Buyer shall be notified to the Consignor separately. The Auctioneer refers in particular to Section 12 (d) of the Auction Conditions: "In the event of deviations from the catalogue details, which significantly reduce the value or suitability of the Auction Goods and which are presented by the Buyer in a justified manner within one year of handover of the Auction Goods, the Auctioneer undertakes to assert his rights in court against the Consignor. In the event of a successful claim against the Consignor, the Auctioneer shall reimburse the Buyer exclusively for the entire purchase price".
(b) The Consignor agrees to the contents of the Auction Conditions.
(c) There are no oral subsidiary agreements. All amendments and supplements to these Consignment Conditions must be agreed in writing; however, a conditional surcharge may also be approved verbally.
(d) Place of performance and place of jurisdiction, if it can be legally agreed, shall be Hamburg. German law shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(e) Should one of the provisions be or become invalid in whole or in part, all other provisions shall remain unaffected. Instead of the invalid provision the corresponding statutory regulations shall apply.
(f) The Auctioneer is neither obliged nor willing to participate in dispute settlements proceedings before a consumer board.
Hamburg, November 1st 2019
