Buyers - Conditions of Sale
GENERAL TERMS & CONDITIONS OF BUSINESS
DEFINITIONS AND GENERAL CONDITIONS
Definitions
1. In these conditions the following words and expressions shall have the following meanings:
'Auctioneer' - James Adam and Sons trading as Adam's
'Auctioneer's Commission' - The commission payable to the Auctioneer by the buyer and seller as specified in conditions 22 and 26.
'Catalogue' - Any advertisement, brochure, estimate, price list or other publication.
'Forgery' - A Lot which was made with the intention of deceiving with regard to authorship, culture, source, origin, date, age or period and which is not shown to be such in the description therefore in the Catalogue and the market value for which at the date of the auction was substantially less than it would have been had the Lot been in accordance with the Catalogue description.
'Hammer Price' - The price at which a Lot is knocked down by the Auctioneer to the buyer.
'Lot' - Any item which is deposited with the Auctioneer with a view to its sale at auction and, in particular, the item or items described against any Lot number in any Catalogue.
'Proceeds of Sale' - The net amount due to the seller being the Hammer Price of the Lot after deducting the Auctioneer's Commission thereon under condition 26 the seller's contribution towards insurance under condition 28, such VAT as is chargeable and any other amounts due by the seller to the Auctioneer in whatever capacity howsoever arising.
'Registration Form or Register' - The registration form (or, in the case of persons who have previously attended at auctions held by the Auctioneer and completed registration forms, the register maintained by the Auctioneer which is compiled from such registration forms) to be completed and signed by each prospective buyer or, where the Auctioneer has acknowledged that a bidder is acting as agent on behalf of a named principal, each such bidder prior to the commencement of an auction.
'Sale Agreement Form' - The sale agreement form to be completed and signed by each seller prior to the commencement of an auction.
'Total Amount Due' - The Hammer Price of the Lot sold, the Auctioneer's Commission due thereon under condition 22, such VAT as is chargeable and any additional interest, expenses or charges due hereunder.
'V.A.T.' - Value Added Tax.
Cataloguing Practice and Catalogue Explanations
2.Terms regarding cataloguing practice used in catalogues have specific meanings, and attention is drawn to these explanations in each published catalogue.
GENERAL CONDITIONS
Auctioneer Acting as Agent
3. The Auctioneer is selling as agent for the seller unless it is specifically stated to the contrary. The Auctioneer as agent for the seller is not responsible for any default by the seller or the buyer. The Auctioneer reserves the right to bid on behalf of the seller.
Auctioneer Bidding on behalf of Buyer
4. It is suggested that the interests of prospective buyers are best protected and served by the buyers attending at an auction. However, the Auctioneer will, if instructed, execute bids on behalf of a prospective buyer. Neither the Auctioneer nor its employees, servants or agents shall be responsible for any neglect or default in executing bids or failing to execute bids.
Admission to Auctions
5. The Auctioneer shall have the right exercisable in its absolute discretion to refuse admission to its premises or attendance at its auctions by any person.
Acceptance of Bids
6. The Auctioneers shall have the right exercisable in its absolute discretion to refuse any bids, advance the bidding in any manner it may decide, withdraw or divide any Lot, combine any two or more Lots and, in the case of a dispute, to put any Lot up for auction again.
Indemnities
7. Any indemnity given under these conditions shall extend to all actions, proceedings, claims, demands, costs and expenses whatever and howsoever incurred or suffered by the person entitled to the benefit of the indemnity and the Auctioneer declares itself to be a trustee of the benefit of every such indemnity for its employees, servants or agents to the extent that such indemnity is expressed to be for their benefit.
Representations in Catalogues
8. Representations or statements made by the Auctioneer in any Catalogue as to attribution, authorship, genuineness, source, origin, date, age, provenance, condition or estimated selling price or value is a statement of opinion only. Neither the Auctioneer nor its employees, servants or agents shall be responsible for the accuracy of any such opinions. Every person interested in a Lot must exercise and rely on their own judgement and opinion as to such matters.
Governing Law
9. These conditions shall be governed by and construed in accordance with Irish Law.
Notices
10. Any notice or other communication required to be given by the Auctioneer hereunder to a buyer or a seller shall, where required, be in writing and shall be sufficiently given if delivered by hand or sent by post to, in the case of the buyer, the address of the buyer specified in the Registration Form or Register, and in the case of the seller, the address of the seller specified in the Sale Agreement Form or to such other address as the buyer or seller (as appropriate) may notify the Auctioneer in writing. Every notice or communication given in accordance with this condition shall be deemed to have been received if delivered by hand on the day and time of
delivery and if delivered by post three (3) business days after posting.
Conflict of Interest
11. The Auctioneer affirms that no conflict of interest exists that prevents him/her providing the property service for the Client.
Records
12. The Auctioneer will keep a record of the services provided on foot of any Agreement for 6 years. All financial records must be kept for 7 years.
Bank Account
13. The Auctioneer's "Client Account" is held at:
Bank of Ireland
39 St. Stephen's Green
Dublin 2
Client Monies
14. Any interest credited to the Client Account in respect of monies held by the Auctioneer will be dispersed in accordance with the Property Services (Regulation) Act 2011 (Client Moneys) Regulations 2012.
Complaints
15. Any complaint which the Client may have arising under this Agreement may be dealt with by Eamon O'Connor - email: e.oconnor@adams.ie - tel: +353 1 6760261. A response will issue within 10 working days of receipt of the complaint.
Where the Client is dissatisfied with the response to the complaint received from the Auctioneer, the Client may make a complaint to: Property Services Regulatory Authority, Abbey Buildings, Abbey Road, Navan, Co Meath, C15 K7PY.
Statement of obligations on the Auctioneer pursuant to section 42 and 43 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010
16. The Auctioneer is obliged under sections 42 and 43 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 to report to An Garda Síochána and the Revenue Commissioners suspicious transactions and transactions involving places designated under section 32 of that Act. The maximum cash accepted per transaction is €8,000. For any cash payments in excess of €500, a PSRA cash origin form will have to completed.
CONDITIONS 17-22 (INCLUSIVE) PREDOMINANTLY
CONCERN THE BUYER
Non-Payment or Failure to Collect Purchased Lots
17. If a buyer fails to pay for and/or collect any purchased Lot by the dates herein specified for payment and collection the Auctioneer shall, in its absolute discretion and without prejudice to any other rights or remedies it may have, be entitled to exercise one or more of the following rights or remedies without further notice to the buyer:
(a) To issue court proceedings for damages for breach of contract.
(b) To rescind the sale of that Lot or any other Lots sold to the buyer whether at that or any other auction.
(c) To resell the Lot or cause it to be resold whether by public auction or private sale. In the event that there is a deficiency between the Total Amount Due by the buyer and the amount received by the Auctioneer on such resale after the deduction of any necessary expenses the difference shall be paid to the Auctioneer by the buyer. Any surplus arising shall belong to the seller.
(d) To store (whether at the Auctioneer's premises or elsewhere) and insure the purchased Lot at the expense of the buyer.
(e) To charge interest on the Total Amount Due at the rate of 2% over and above the base interest rate from time to time of Bank of Ireland or if there be no such rate, the nearest equivalent thereto as determined by the Auctioneer in its absolute discretion from the date on which the payment is due hereunder to the date of actual payment.
(f) To retain that Lot or any other Lot purchased by the buyer whether at the same or any other auction and release same to the buyer only after payment to the Auctioneer of the Total Amount Due.
(g) To apply sums which the Auctioneer received in respect of Lots being sold by the buyer towards settlement of the Total Amount Due.
(h) To exercise a lien on any property of the buyer in the possession of the Auctioneer for whatever reason.
Liability of Auctioneer and Seller
18. Prior to auction ample opportunity is given for the inspection of the Lots on sale and each buyer by making a bid acknowledges that he has, by exercising and relying on his own judgement, satisfied himself as to the physical condition, age and Catalogue description of each Lot (including but not restricted to whether the Lot is damaged or has been repaired or restored). All Lots are sold with all faults and imperfections and errors of description. None of the seller, the Auctioneer nor any of their employees, servants or agents shall be responsible for any error of description or for the condition or authenticity of any Lot. No warranty whatsoever is given by the seller or Auctioneer or by any of their employees, servants or agents in respect of any Lot and any condition or warranty express or implied by statute or otherwise is hereby specifically excluded.
Forgeries
19. Any amount paid by a buyer in respect of a Lot which, if it is proved within 3 years of the date of the auction at which it was purchased, to have been a Forgery shall be refunded by the seller subject to the provisions hereof, provided that:
(a) The Lot has been returned by the buyer to the Auctioneer within 3 years of the date of the auction in the same condition in which it was at the time of the auction together with evidence proving that it is a Forgery, the number of the Lot and the date of the auction at which it was purchased;
(b) The Auctioneer is satisfied that the Lot is a Forgery and that the buyer has and is able to transfer good and marketable title to the Lot free form any third party claims;
FURTHER PROVIDED THAT the buyer shall have no rights here under if:
(i) The description of the Lot in the Catalogue at the time of the auction was in accordance with the then generally accepted opinion of the scholars or experts or fairly indicated that there was a conflict of such opinion;
(ii) The only method of establishing at the time of the auction in question that the Lot was a Forgery would have been by means of scientific processes which were not generally accepted for use until after the date of the auction or which were unresonably expensive or impratical.
The buyer's sole entitlement under this condition is to a refund of the actual amount paid by him in respect of the Lot. Under no circumstances shall the Auctioneer be liable for any damage, loss (including consequential, indirect or economic loss) or expense suffered or incurred by the buyer by reason of the Lot being a Forgery. The benefit of this condition shall be solely and exclusively for the buyer and shall not be assignable. The buyer shall for the purpose of this condition be the person to whom the original invoice in respect of the sale of the Lot is made.
Photographs
20. The buyer authorises the Auctioneer at any time to make use of any photographs or illustrations of the Lot purchased by the buyer for such purposes as the Auctioneer may require.
New VAT Regulations
21. All lots are sold within the Auctioneer's VAT margin scheme. Revenue Regulations require that the buyer's premium must be invoiced at a rate which is inclusive of VAT. This VAT is not recoverable by any VAT registered buyer.
Buyer's Premium
22. The Auctioneer may also charge a fee to the purchaser "the buyer's premium". The buyer's premium is a commission paid by the buyer to the Agent in addition to the sale price. The standard buyer's premium shall be 25% inclusive of VAT, and may be subject to change.
Internet Bidding
23. These terms and conditions apply to all internet bidding at sales conducted by, or in conjunction with, Adam's, covering both live auctions and online-only timed auctions. Internet bidding conditions are in conjunction to those which are covered in our General Terms and Conditions of Business.
Registration
Before you can bid via Internet Bidding, you must register to bid online by signing up for a 'My Adam's' account. Bidders must be registered at least 24 hours prior to the start of any Sale or you may not be able to bid online in that Sale. You will be liable for any and all bids made via your account.
Internet Bidding Process
Each bid made online shall be final and binding as soon as you click the Bid button. The bidder holds sole responsibility for any bid submitted, including those made in error, and will be held liable for the full payment and collection of the lot if named the winning bidder.
In the event of a tie between a bid placed by you online and any other identical bid(s) (including bids made in person at the Sale, telephone bids, absentee bids, and other internet bids), it will be at the auctioneer's discretion as to which bid shall be accepted.
Adam's reserves the right to reject a registration to bid online, withdraw its permission for you to use Internet Bidding, or terminate an Internet Bidding account, for any reason at any time prior to, during or after a Sale without prior notice.
If you choose to use the Internet Bidding service, you do so entirely at your own risk. Adam's does not take responsibility for any issues regarding internet bidding functionality or delays which may occur due to software or hardware complications.
CONDITIONS 24-40 (INCLUSIVE) PREDOMINANTLY CONCERN THE SELLER
Auctioneer's Discretion
24. With regard to the sale of any Lot the Auctioneer shall have the following powers exercisable solely in the discretion of the Auctioneer.
(i) To decide whether to offer any Lot for sale or not.
(ii) To decide whether a particular Lot is suitable for sale by the Auctioneer and, if so, to determine which auction, the place and date of sale, the conditions of sale and the manner in which such sale should be conducted.
(iii) To determine the description of any Lot in a Catalogue.
(iv) To decide whether the views of any expert shall be obtained and to submit Lots for examination by any such experts.
(v) To determine what illustration of a Lot (if any) is to be included in the Catalogue.
Seller's Warranty and Indemnity
25. The seller warrants to the Auctioneer and to the buyer that he is the true owner of the Lot or is legally authorised to sell the Lot on behalf of the true owner and can transfer good and marketable title to the Lot free from any third party claims. As regards Lots not held by the Auctioneer on its premises or under its control the seller warrants and undertakes to the Auctioneer and the buyer that the Lot will be available and in a deliverable state on demand by the Auctioneer or buyer. The seller shall indemnify the Auctioneer and the buyer or any of their respective employees, servants or agents against any loss or damage suffered by any of them in consequence of any breach of the above warranties or undertakings by the seller.
Commission
26. The Seller shall pay the Auctioneer commission at the rate of 10% on the Hammer Price of all Lots sold on behalf of the seller at Irish Art Sales and 17.5% on all other sales together with VAT thereon at the applicable rate. Minimum charges are detailed below. The seller authorises the Auctioneer to deduct from the Hammer Price, paid by the buyer, the Auctioneer's Commission under this condition; VAT payable at the applicable rates and any other amounts due by the seller to the Auctioneer in whatever capacity howsoever arising. The seller agrees that the Auctioneer may also receive commission from the buyer pursuant to condition 22.
Minimum Charges: Each individual lot is subject to a minimum fee of €25.00 plus VAT.
Reserves
27. Subject to the Auctioneer's discretion, the seller shall be entitled prior to the auction to place a reserve on any Lot. All reserves must be agreed in advance by the Auctioneer and entered on the Sale Agreement Form or subsequently be confirmed in writing to the Auctioneer prior to auction. This also applies to changes in reserves. A reserve may not be placed upon any Lot under €500 in value. The reserve shall be the minimum Hammer Price at which the Lot may be sold by the Auctioneer. A reserve once in place may only be changed with the consent of the Auctioneer. A commission shall be charged on the 'knock-down' bid for Lots which fail to reach the reserve price. Such commission shall be 5% of the 'knock-down' bid (Buying In Fee). This commission and any VAT payable thereon must be paid before removal of the Lot after the auction. The minimum commission hereunder shall be €25 per lot. The Auctioneer may in its sole discretion sell a Lot at a Hammer Price below the reserve but in such case the Proceeds of Sale to which the seller shall be entitled shall be the same as they would have been had the sale been at the reserve.Unless a reserve has been placed on a Lot in accordance with the provisions set out above such Lot shall be put up for sale without reserve. In the event that any reserve price is not reached at auction then for so long as the Lot remains with the Auctioneer and to the extent that the Lot has not been re-entered in another auction pursuant to condition 36 the seller authorises the Auctioneer to sell the Lot by private treaty at not less than the reserve price. The Auctioneer shall ensure that in such a case those conditions herein which concern mainly the buyer shall, with any necessary modifications, apply to such sale.
Reserve Instructions
Fixed - sell at a pre-determined value, no higher than the low estimate
Discretion - sell up to 10% below the low estimate
Wide Discretion - sell up to 30% below the low estimate
No Reserve - sell to the highest bidder
Sell - sell to the highest bidder at any amount irrespective of the Lot value
Loss Warranty
28. Unless otherwise instructed by the seller, all Lots deposited with the Auctioneer or put under its control for sale shall automatically be insured by the Auctioneer under the Auctioneer's own fine arts policy for the median estimate, as determined solely at the Auctioneer's discretion.The seller shall pay the Auctioneer a contribution towards such insurance at the rate of 1.5% of the Hammer Price plus VAT. If the seller instructs the Auctioneer not to insure a Lot then the Lot shall at all times remain at the risk of the seller who undertakes to indemnify the Auctioneer and hold the Auctioneer harmless against any and all claims made or proceedings brought against the Auctioneer of whatever nature and howsoever and wheresoever occurring for loss or damage to the Lot. The sum for which a Lot is covered for insurance under this condition shall not constitute and shall not be relied upon by the seller as a representation, warranty or guarantee as to the value of the Lot or that the Lot will, if sold by the Auctioneer, be sold for such amount. Such insurance shall subsist until such time as the Lot is paid for and collected by the buyer or, in the case of Lots sold which are not paid for or collected by the buyer by the due date hereunder for payment or collection such due date or, in the case of Lots which are not sold, on the expiry of 7 days from the date on which the Auctioneer has notified the seller to collect the Lots.
Professional Indemnity Insurance
29. The Auctioneer holds PI Insurance with:
Insurer's Name: Hiscox Insurance PLC
Address:? The Hiscox Building, Peasholme Green, York, YO1 7PR, UK.
Duration of Agreement
30. Duration of this agreement shall commence from the the date of consignment, as recorded on the sale agreement/receipt, and shall continue in force until the property is either sold or collected (The Contract Period). If terminated before the end of the contract period, 30 days notice shall be given.
Termination of Agreement
31. The Agreement can be terminated at the complete discretion of the Auctioneer at any time, subject to the 30 days notice, as outlined in condition 30. A vendor is able to end an agreement at any point up to the sale of the Lot but will be held subject to charges for withdrawn Lots, as outlined in Article 35.
Recision of Sale
32. If before the Auctioneer has paid the Proceeds of Sale to the seller the buyer proves to the satisfaction of the Auctioneer that the Lot is a Forgery and the requirements of condition 19 are satisfied the Auctioneer shall rescind the sale and refund to the buyer any amount paid to the
Auctioneer by the buyer in respect of the Lot.
Payment of Proceeds of Sale
33. It is a condition of sale that payment to the seller cannot be made unless the buyer has paid, and their funds cleared through our bank. The Auctioneer shall remit the Proceeds of Sale to the seller not later than 30 days after the date of the auction, provided however that, if by that date, the Auctioneer has not received the Total Amount Due from the buyer then the Auctioneer shall remit the Proceeds of Sale within 7 working days after the date on which the Total Amount Due is received from the buyer. If credit terms have been agreed between the Auctioneer and the buyer the Auctioneer shall remit to the seller the Proceeds of Sale not later than 30 days after the date of the auction unless otherwise agreed by the seller. If before the Total Amount Due is paid by the buyer the Auctioneer pays the seller an amount equal to the Proceeds of Sale then title to the Lot shall pass to the Auctioneer. If the buyer fails to pay the Auctioneer the Total Amount Due within 14 days after the date of the auction, the Auctioneer shall endeavour to notify the seller and take the seller's instructions on the course of action to be taken and, to the extent that it is in the sole opinion of the Auctioneer feasible, shall endeavour to assist the seller to recover the Total Amount Due from the buyer provided that nothing herein shall oblige the Auctioneer to issue proceedings against the buyer in the Auctioneer's own name. If circumstances do not permit the Auctioneer to take instructions from the seller or, if after notifying the seller, it does not receive instructions within 7 days, the Auctioneer reserves the right, and is hereby authorised by the seller at the seller's expense, to agree special terms for payments of the Total Amount Due, to remove, store and insure the lot sold, to settle claims made by or against the buyer on such terms as the Auctioneers shall in its absolute discretion think fit, to take such steps are necessary to collect monies due by the buyer.
Payment of Proceeds to Overseas Sellers
34. If the seller resides outside Ireland the Proceeds of Sale shall be paid to such seller in Euros unless it was agreed with the seller prior to the auction that the Proceeds of Sale would be paid in a currency (other than Euros) specified by the seller in which case the Proceeds of Sale shall be paid by the Auctioneer to the seller in such specified currency (provided that the currency is legally available to the Auctioneer in the amount required) calculated at the rate of exchange quoted to the Auctioneer by its bankers on the date of payment.
Charges for Withdrawn Lots
35. Once catalogued, Lots withdrawn from sale before proofing/publication of Catalogue will be subject to commission of 5% of the Auctioneer's latest estimate of the auction price of the Lot withdrawn together with VAT thereon and any expenses incurred by the Auctioneer in relation to the Lot. If Lots are withdrawn after proofing or publication of Catalogue they will be subject to a commission of 10% of the Auctioneer's latest estimate of the auction price of the Lot withdrawn together with VAT thereon and any expenses incurred by the Auctioneer in relation to the Lot. All commission hereunder must be paid for before Lots withdrawn may be removed.
Unsold Lots
36. Where any Lot fails to sell at auction the Auctioneer shall notify the seller accordingly and (in
the absence of agreement between the seller and the Auctioneer to the contrary) such Lot may, in the absolute discretion of the Auctioneer, be re-entered in the next suitable auction unless instructions are received from the seller to the contrary, otherwise such Lots must be collected at the seller's expense within the period of 30 days of such notification from the Auctioneer. Upon the expiry of such period the Auctioneer shall have the right to sell such Lots by public auction or private sale and on such terms as the Auctioneer in its sole discretion may think fit. The Auctioneer shall be entitled to deduct from the price received for such Lots any sums owing to the Auctioneer in respect of such Lots including without limitation removal, storage and insurance expenses, any commission and expenses due in respect of the prior auction and commission and expenses in respect of the subsequent auction together with all reasonable expenses before remitting the balance to the seller. If the seller cannot be traced the balance shall be placed in a bank account in the name of the Auctioneer for the seller. Any deficit arising shall be due from the seller to the Auctioneer. Any Lots returned at the seller's request shall be returned at the seller's risk and expense and will not be insured in transit unless the Auctioneer is so instructed by the seller.
Photographs and Illustrations/Marketing Charges
37. The seller authorises the Auctioneer to photograph and illustrate any Lot placed with it for sale and further authorises the Auctioneer to use such photographs and illustrations and any photographs and illustrations provided by the seller at any time in its absolute discretion (whether or not in connection with the auction).
Catalogue illustrations are included at the discretion of the Auctioneer. Marketing charges will be calculated as a scaled fee, working off the hammer price as per the table below. All prices are subject to VAT at the standard rate.
€0-€500 hammer price €25
€501-€2999 hammer price €50
€3000 and above hammer price €100
Outlay Charges
38. Where additional costs from third parties have acrued from the handling and selling of a Lot, the seller authorises the Auctioneer to deduct these charges from the Total Amount Due. These charges include, but are not limited to, charges concerning carriage, restoration, framing and repair and are set by the third party. Where the Lot is not sold, these charges will be billed directly to the client.
VAT
39. It is presumed, unless stated to the contrary, that the items listed herein are auction scheme goods as defined in the Finance Act 1995.
Artist's Resale Rights (Droit de Suite)
40. Government Regulations (S.1. 312/2006)
Under this legislation a royalty (droit de suite) is payable to living or deceased (up to 70 years from date of death) artists of E.U. Nationality on all works resold for €3,000 or more, other than those sold by the artist or the artist's agent.
The resale royalty payable is calculated as follows:
From €3,000 to €50,000 4%
From €50,000.01 to €200,000 3%
From €200,000.01 to €350,000 1%
From €350,000.01 to €500,000 0.5%
Exceeding €500,000 0.25%
The total amount of royalty payable on any individual sale shall not exceed €12,500.
The seller is liable for payment (paragraph 7.1 of Government Regulations (S.1. 312/2006)) of this
royalty on completion of the sale. The artist may request from the Auctioneer any information
necessary to secure payment.
Unless otherwise directed by the vendor, the Auctioneer will automatically deduct the amount due
from the proceeds of sale and will hold in trust for the artist or their representative the said sum.
