Versteigerungsbedingungen 28.05.2017
General Terms and Conditions regarding Auction Sales
of FL Pfand- & Auktionshaus Anstalt
(As of 19 June 2017)
1. Scope
These general terms and conditions regarding auction sales of FL Pfand- & Auktionshaus Anstalt (hereinafter referred to as "Auktionshaus") govern the business relationships between the principal or the bidder on the one hand, and Auktionshaus on the other hand, and control the procedure of auctions Auktionshaus conducts (hereinafter referred to as "TC").
Every auction is carried out as consignment, thus in the name of Auktionshaus as consignee and on the account of the principal as consignor.
In addition to the TC, the provisions of the Common German Commercial Law Code (Allgemeines deutsches Handelsgesetzbuch, hereinafter referred to as "ADHGB") regarding consignments (art. 360 et seqq.), the Copyright Law (Urheberrechtsgesetz, hereinafter referred to as "URG") regarding the resale right [Folgerecht] (art. 15a et seqq.), of the Property Law (Sachenrecht, hereinafter referred to as "SR") regarding pledges (art. 365 et seqq.), and the Common Civil Law Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter referred to as "ABGB") are applicable.
The auctions are carried out on a voluntary basis and are public.
2. Auction Objects
Auktionshaus only auctions objects that are marketable, realizable, tangible, and clearly ascertainable and whose sale is legally permissible and which were
(i) voluntarily handed over to Auktionshaus for auction,
(ii) handed over to Auktionshaus in order to be resold by virtue of self-help [Selbsthilfeverkauf] (art. 343 ADHGB), or
(iii) pledged to Auktionshaus and subsequently not redeemed by the pledgor in time
(hereinafter referred to as "Auction Object").
Auktionshaus may refuse to accept an object for auction without giving reasons. This is particularly the case if the object appears to have been taken away unlawfully, stolen, embezzled or smuggled. Auktionshaus may at any time withdraw an Auction Object from auction without giving reasons. This is particularly the case if, after acceptance, doubts arise as regards the object's authenticity, the legality of its import and/or import license or the principal's domain (right to dispose).
3. Principal / Auction Order
Every person of legal age (after attaining the eighteenth (18th) year of age) may as principal place with Auktionshaus an auction order with regard to an object. However, Auktionshaus may refuse to accept a principal without giving reasons. The principal must prove to Auktionshaus his/her identity by showing a valid official photo ID.
4. Receipt of Acceptance / Lien
When handing over to Auktionshaus an object for auction, the principal must sign a receipt of acceptance listing every object that Auktionshaus accepted.
By signing the receipt of acceptance, the principal explicitly confirms that he/she
(i) took notice of the consignment coming into effect,
(ii) took notice of the waiver of art. 361 ADHGB,
(iii) places with Auktionshaus an order regarding realization,
(iv) handed over to Auktionshaus the Auction Object,
(v) took notice of the pledging agreement coming into effect, creating a pledge on the Auction Object for the benefit of Auktionshaus,
(vi) accepts the TC and the terms and conditions contained in the receipt of acceptance, particularly, the Auction Object's appraisal and description as well as the starting price and the minimum sale price (sale limit) that he/she specified,
(vii) is the legal and beneficial owner of the Auction Object and/or has the sole right to use [Werknutzungsrecht] associated therewith,
(viii) and/or the author approves of any reproduction, publication and exhibition of the Auction Object (Art. 10 URG), and that
(ix) there are no third parties' rights with regard to the Auction Object.
The lien on the Auction Object for the benefit of Auktionshaus covers all of Auktionshaus's present, future and conditional claims, and claims not yet due that are in connection with the consignment and Auktionshaus's possible claims for damages, including the costs of legal representation. Auktionshaus is entitled to use auction proceeds to settle these claims in case the principal fails to do so.
As regards Auction Objects pledged to Auktionshaus, the principal, when perfecting the pledge, grants Auktionshaus the right to realize the pledge. Auktionshaus is entitled to auction the pledged Auction Objects in accordance with clause XI of the general terms and conditions and/or the conditions contained in the receipt of acceptance. In case of an auction, the principal/pledgor acts as consignor.
5. Appraisal and Description
Auktionshaus appraises and describes every Auction Object using its best efforts. Any appraisal and description is only for internal purposes and is based on Auktionshaus's subjective opinion. Any appraisal and description is non-binding, no assurance of a certain value or a particular condition and may not be used by the principal as guidance when determining the starting price or the minimum sale price (sale limit).
The principal does not incur any costs with regard to the appraisal and the description.
The principal must independently from Auktionshaus's appraisal and description determine the starting price and the minimum sale (sale limit).
Auktionshaus may not be held liable with regard to the appraisal and the description of an Auction Object, particularly as regards the accurateness or appropriateness of the appraisal value or a particular condition.
The principal may on his/her own risk and costs retain an expert for appraising and describing an Auction Object.
By signing the receipt of acceptance, the principal explicitly confirms that he/she
(i) agrees with Auktionshaus's appraisal and description of the Auction Object,
(ii) determined the starting price and the minimum sale price (sale limit) and, in this regard, will not advance any claims against Auktionshaus, and
(iii) waives the right to contest the consignment on the basis of laesio enormis [Verkürzung über die Hälfte], error, or on the ground of the ceasing to exist of the basis of the transaction [Wegfall der Geschäftsgrundlage], and to advance any claims based on warranty.
6. Exhibition / Inspection / Reproduction
Auktionshaus may choose, and alter at any time, the venue of exhibition, the date of exhibition, the means of exhibition and the necessary means of transport. Auktionshaus may decide about the publication, layout and modification of advertising materials, particularly an auction catalogue or a prospectus.
Before the auction, every person may physically and/or by using visual technical auxiliary devices inspect Auction Objects at certain times specified by Auktionshaus, or, if previously agreed with Auktionshaus, at different times. Auktionshaus will use its best efforts to allow every person examine the state and condition of Auction Objects.
Auktionshaus may put Auction Objects on display either at the premises of its registered seat or a branch or an enterprise associated with Auktionshaus located in Liechtenstein, Switzerland or the European Economic Area. In addition, Auktionshaus physically and/or by using visual technical auxiliary devices presents Auction Objects in the course of the auction. Thus, every person has the opportunity to inspect Auction Objects immediately before the beginning or during the auction.
Auktionshaus auctions the Auction Objects in the state and condition at the time of the fall of the hammer at the auction.
In case Auktionshaus decides to publish advertising materials for certain auctions, particularly an auction catalogue or a prospectus, such advertising materials include, if possible, all Auctions Objects that shall be auctioned at the respective auction. Due to the fact that the principal may cancel the auction order up to twenty-four (24) hours before the beginning of the auction, Auktionshaus cannot guarantee that the Auction Objects presented in the advertising materials will actually be auctioned.
An auction catalogue contains at least information regarding the starting price and the description of an Auction Object as well as a photograph. Auktionshaus does not guarantee the accurateness and completeness of the respective information, particularly concerning a certain value or a particular condition of an Auction Object. Auktionshaus may at any time correct information contained in the auction catalogue, even after printing.
All texts, particularly the TC and all information in advertising materials, drawn up in English or in a language other than German, are non-binding and a service of Auktionshaus. Auktionshaus may not be held liable for the accurateness and completeness of translations. In case of ambiguities or disputes, the German version of a text prevails.
By signing the receipt of acceptance, the principal explicitly consents to a standardized reproduction of the Auction Object in advertising materials for the standard fee of CHF 99.00 and acknowledges his/her duty to pay. However, Auktionshaus and the principal may, when signing the receipt of acceptance, agree on different terms as regards the modalities of reproduction and the costs.
By signing the receipt of acceptance, the principal grants Auktionshaus explicitly and free of charge the right to use, reproduce and publish the Auction Object's photographs and other reproductions without any restrictions (regarding time, place or extent), particularly for marketing the auction or the business activities of Auktionshaus in general. This also applies to photographs and other reproductions the principal made available to Auktionshaus and has the copyright regarding reproduction, publication and exhibition (art. 10 URG).
7. Cancellation
The principal may cancel the auction order up to twenty-four (24) hours before the beginning of the auction upon paying of a withdrawal fee. Absent an agreement on a different fee, a withdrawal fee of 15% of the minimum sale price (sale limit) applies.
Auktionshaus may for any material reason cancel with immediate effect the consignment either in writing (by mail, email or facsimile) or orally. In particular, a material reason is given if
(i) the principal, despite Auktionshaus's written or oral request, fails to render instructions as regards further transaction of business,
(ii) the principal fails to fulfill the requirements Auktionshaus requested and/or to provide securities,
(iii) the auction becomes impossible and/or unreasonable for Auktionshaus because of legal, ethical, socio-political or business reasons,
(iv) any facts listed in clause 2 of the TC subsequently emerge, or
(v) the principal gave wrong information regarding his/her identity, the Auction Object, its origin or any other circumstances that are relevant for the transaction.
8. Participation at the Auction
Every person of legal age (after attaining the eighteenth (18th) year of age) may participate at an auction as bidder. However, Auktionshaus or the head of auction may, without giving reasons, refuse to allow a person access to or the presence in the auction venue or participation at the auction. Particularly, if there is a suspicion of collusion of bidders or in case the auction's orderly execution is disrupted, Auktionshaus or the head of auction may dismiss the respective person(s) from the auction and/or expel them from the auction venue.
Every person wishing to participate at an auction as bidder must register with Auktionshaus either in writing (by mail, email or facsimile) twenty-four (24) hours before the beginning of the auction (received by Auktionshaus) at the latest or in person immediately before the beginning of the auction and give proof of his/her identity by showing a valid official photo ID.
In case of participating at an auction by using electronic means (online auction), the registration must be made before the beginning of the auction at the latest by providing credit card and/or bank account details.
By registering, the bidder explicitly confirms that he/she
(i) has knowledge of the TC and consents thereto,
(ii) when making his/her bid, waives the right to contest the sale contract on the basis of laesio enormis [Verkürzung über die Hälfte], error, or on the ground of the ceasing to exist of the basis of the transaction [Wegfall der Geschäftsgrundlage], and to advance any claims based on warranty, and
(iii) acquires Auction Objects bought at the auction based on his/her special preference.
Auktionshaus may make a person's participation at an auction conditional on paying a deposit before the beginning of the auction or any other requirement. In case the deposit is not made or the requirement is not fulfilled in time, the respective person may not participate at the auction. Auktionshaus may not be held liable for a person's non-participation at an auction.
At the auction, bidders may make their bids orally, by telephone, in writing or by using electronic means (online auction). Auktionshaus or the head of auction may refuse to accept or consider a bidder's bid without giving any reasons.
Bids in writing (by mail, email or facsimile) must include the Auction Object, the amount of the bid, the name, the address, the telephone number, a copy of the valid official photo ID of the bidder, and the signature of the bidder, and must be received by Auktionshaus twenty-four (24) hours before the beginning of the auction at the latest. Bids in writing that are equal are ranked due to the time of their receipt.
Please be aware that the highest bid made at an auction which was accepted with the fall of the hammer (hammer price) is not equivalent to the purchase price for an Auction Object according to clause 10. of the TC.
Auktionshaus provides a telephone and/or internet connection for bidders that participate at the auction by telephone and/or by using electronic means (online auction). However, Auktionshaus does not guarantee proper execution and/or functionality of the telephone and/or internet connection. Auktionshaus may not be held liable for any errors in the processing of bids. The bidder assumes any risk associated with missing information in or ambiguities of his/her bid, and any technical issues occurring during the auction's execution.
9. Starting Price / Bids
The head of auction of Auktionshaus is in charge with conducting the auction.
When placing the auction order, the principal specified the starting price and the minimum sale price (sale limit) regarding Auction Objects that were handed over to Auktionshaus for auction voluntarily or for resale by virtue of self-help [Selbsthilfeverkauf]. Regarding Auction Objects that were pledged to Auktionshaus, according to clause XI of the general terms and conditions, for the first auction, the starting price is 30% of the appraisal value. However, this does not apply to the second or any further auction(s).
The head of auction may, at the auction, separate, join and withdraw Auction Objects, and deviate from any predetermined order. The head of auction may put up for action an Auction Object below the starting price and/or minimum sale price (sale limit). In case the starting price is successively decreased at the auction, the bidding process commences with the first valid bid. In general, bids increase in increments of approximately 10% of the starting price or the last bid.
When making a bid at the auction, the bidder makes a binding offer to buy for the amount of the price then most current and explicitly confirms that he/she
(i) inspected the Auction Object before the beginning of or during the auction,
(ii) examined the Auction Object's state and condition,
(iii) waives the right to contest the sale contract on the basis of laesio enormis [Verkürzung über die Hälfte], error, or on the ground of the ceasing to exist of the basis of the transaction [Wegfall der Geschäftsgrundlage], and to advance any claims based on warranty, and
(iv) acquires Auction Objects bought at the auction based on his/her special preference;
(v) consents to the TC and makes them part of his/her declaration of intent, and
(vi) enters into a pledging agreement with Auktionshaus regarding the Auction Object the bid related to.
The bidder is bound to his/her bid until Auktionshaus or the head of auction refused to accept, did not consider or finally (without reservation) accepted the bid. The contract regarding the Auction Object is formed by the head of action's accepting the highest bid, after calling three times for higher bids, with the fall of the hammer and the head of auction's words "Zum Dritten" ["Sold"].
In case of controversies, alleged multiple bids, or if a bid was overseen or not perceived or, for any other reason, remained unconsidered, or the head of auction erred regarding the existence or non-existence of a bid, Auktionshaus decides whether or not a bid was accepted with the fall of the hammer. In these cases, Auktionshaus may, either at the auction or within three (3) business days after the fall of the hammer, rescind a bid's acceptance. The Auction Object affected may again be put up for auction in the same or in another auction. In case a bid's acceptance was rescinded, Auktionshaus may also retrospectively accept the latest bid of the bidder that ranked second.
In case the minimum sale price (sale limit) is not reached at an auction, the head of auction may accept a bid "under reservation". Thus, the bidder remains bound to his/her offer to buy for three (3) business days. Auktionshaus will use its best efforts to obtain the principal's written consent essential to conclude the contract. The offer to buy is only accepted (acceptance of the bid) if Auktionshaus in writing notifies the bidder regarding the execution of the contract within three (3) business days (date of the postmark).
10. Purchase Price
The purchase price of an Auction Object comprises the highest bid (hammer price), plus the buyer's surcharge, taxes and other fees, costs, expenditures, interest and expenses as well as any royalty that potentially becomes due.
The buyer's surcharge is 18% of the hammer price, and, in case of acquisition at an auction by using electronic means (online auction), 21% of the hammer price.
As regards Auction Objects that are not specifically marked in the auction catalogue or the prospectus, VAT is included in the buyer's surcharge (example 1). As regards Auction Objects that are marked with "*" in the auction catalogue or the prospectus, VAT is not included in the buyer's surcharge. It will be calculated based on the total price (hammer price plus buyer's surcharge, other fees, costs, expenditures, interest and expenses as well as any royalty that potentially becomes due) and added to the total price (example 2).
Example 1 (Auction Object not specifically marked):
Sale for a hammer price of CHF 3'000.00 (without royalty): the purchase price is CHF 3'540.00 (CHF 3'000.00 hammer price + CHF 540.00 buyer's surcharge).
Example 2 (Auction Object marked with "*"):
Sale for a hammer price of CHF 3'000.00 (without royalty): the purchase price is CHF 3'824.20 (CHF 3'000.00 hammer price + CHF 540.00 buyer's surcharge + CHF 283.20 VAT in the amount of 7,7%).
A royalty only applies to a hammer price exceeding CHF 4'700.00 for pieces of art that are listed in art. 15c URG. This royalty is forwarded to authors, their successors, or collecting societies. The amount payable as royalty is staggered as follows and capped with CHF 19'500.00:
CHF 4'700.00 to CHF 78'000.00: 4.00%
CHF 78'001.00 to CHF 312'000.00: 3.00%
CHF 312'001.00 to CHF 546'000.00: 1.00%
CHF 546'001.00 to CHF 780'000.00: 0.50%
CHF 780'001.00 and more: 0.25%
In case of foreign authors, the royalty must be determined in accordance with the applicable copyright law.
Absent an agreement on a different fee, the seller's discharge payable by the principal is 20% of the hammer price.
In case the minimum sale price (sale limit) was not attained at an auction, the principal must, regardless of any other applicable charges, reimburse Auktionshaus by paying a limit charge (plus VAT) as follows:
up to CHF 1'000.00: CHF 49.00
CHF 1'001.00 to CHF 5'000.00: CHF 99.00
CHF 5'001.00 and more: 2% of the appraisal value
In case of payments with credit card, additional charges of 2 to 4% apply. Auktionshaus only accepts a credit card that is issued in the name of the bidder or the principal.
11. Payment of the Purchase Price / Risk of Loss / Insurance
Upon final acceptance of the bid (without reservation), the bidder is required to take possession of the Auction Object at his/her own costs and to pay the purchase price within seven (7) days after final acceptance of the bid (without reservation). In case the bidder is fully or partially in default, Auktionshaus may choose to either uphold the contract or withdraw from the contract after granting a grace period of fourteen (14) days (§§ 918 et seqq. ABGB).
In case Auktionshaus chooses to uphold the contract despite the bidder's default, the bidder is required to pay to Auktionshaus default interest under the law and reimburse Auktionshaus for potential claims for damages, including the costs of legal representation.
From the time of default, the Auction Object is stored at Auktionshaus at the bidder's risk and costs.
In case Auktionshaus withdraws from the contract due to the bidder's default, Auktionshaus reserves the right, for itself and/or for the principal, to request from the bidder compensation for damage caused by withdrawing from the contract. Such claims for damages include the costs of legal representation and any loss resulting from a lower purchase price realized with a substitute sale or a further auction.
In case the bidder is in default with taking possession of the Auction Object, Auktionshaus may put up the Auction Object for a further auction or sell it in the open market at the cost and risk of the bidder. As regards any fees, the bidder is considered as principal.
From the time of the formation of the consignment until the point in time when the purchase price is due, all Auction Objects are insured against fire, burglary, loss and damage up to the insurance value. Vis-à-vis the principal, the minimum sale price (sale limit), or, in case the principal did not specify a minimum sale price, an amount of 120% of the starting price is the insurance value. Vis-à-vis the bidder, the purchase price is the insurance value.
From the time of the formation of the consignment until final acceptance of the bid (without reservation), Auktionshaus is liable vis-à-vis the principal for any damages to an Auction Object. From the time of the final acceptance of the bid (without reservation) until the point in time when the purchase price is due, Auktionshaus is liable vis-à-vis the bidder for any damages to an Auction Object. However, Auktionshaus may not be held liable for slight negligence or vis maior (natural disasters, war, terrorist attacks, political riots etc.). In any case, Auktionshaus is only required to reimburse the insurance value.
The bidder becomes legal owner of the Auction Object only after full payment of the purchase price.
Absent an agreement on a different place of performance, Auktionshaus's place of business is the place of performance. Any shipping is carried out at the risk and costs of the bidder who assumes the risk of subsequent impossibility of performance, any deterioration, or loss in value of the Auction Object. The risk of loss passes to the bidder at the point in time of dispatching. Any costs of shipping and packaging are not included in the purchase price and will be invoiced separately. The bidder shall duly in advance notify Auktionshaus of the required method of shipping.
12. Entitlement to Disbursement
The principal's claim regarding disbursement of his/her share of the purchase price only comes into existence after Auktionshaus received the purchase price in full.
13. Applicable Law / Jurisdiction
Liechtenstein law, without having regard to the conflict of law rules and the provisions of the UN Convention on Contracts for the International Sale of Goods, is applicable to any and all legal issues in connection with an action.
Vaduz is the proper venue of jurisdiction.
