Terms & Conditions
Our Terms and Conditions
The conditions set out below and all other terms, conditions and notices set out in Henry Spencer Auctioneers's individual catalogues form the terms on which Henry Spencer Auctioneers contracts with any actual or prospective Buyer. The Conditions apply to all aspects of the relationship between Henry Spencer Auctioneers and any actual or prospective Buyer regarding the sale by Henry Spencer Auctioneers of goods and any appraisal, inspection or valuation of such goods that Henry Spencer Auctioneers is required by any actual or prospective Buyer to undertake, therefore please read them carefully. Any prospective Buyer should pay particular attention to the Conditions before bidding. All prospective Buyers, by making a bid for any goods advertised, acknowledge that their attention has been drawn to the Conditions and that they are bound by them.
Henry Spencer Auctioneers cannot and does not undertake full due diligence on every good offered for sale and/or sold. All prospective Buyers therefore have a responsibility to carry out their own inspection and investigations to satisfy themselves as to the nature of the goods that they are interested in buying. Henry Spencer Auctioneers specifically draws the attention of all prospective Buyers to Conditions 3 and 4, which require all prospective Buyers to investigate any goods prior to bidding for such goods and specifically limits the extent to which Henry Spencer Auctioneers may be liable in respect of any goods (the exclusions and limitations of liability by Henry Spencer Auctioneers being consistent with those imposed by most major auction houses.)
Interpretation of Conditions
1. Definitions
(a) In the Conditions, the following terms shall have the following meanings unless the context otherwise requires:
'Buyer' means, in respect of any lot, the person who makes the highest bid before the end of the auction, providing that (where applicable) the reserve for the lot has been met.
'Hammer Price' means the closing price of the auction.
'Henry Spencer Auctioneers' means Henry Spencer Auctioneers Limited.
(b) In these Conditions, words denoting a singular number only shall include the plural and vice versa and references to the masculine gender shall include the feminine and neuter genders and vice versa.
(c) The headings and sub-headings in the Conditions do not form part of the Conditions themselves but are for convenience only and do not affect their construction.
(d) Reference to any statute or statutory provision in the Conditions includes a reference to the statute or statutory provision as from time to time amended, extended or re-enacted.
2. Guarantee in respect of deliberate forgeries
(a) If Henry Spencer Auctioneers sells a lot that subsequently proves to be a deliberate forgery, Henry Spencer Auctioneers shall (subject to Conditions 2(b), 2(c) and 2(d)) rescind the sale and refund to the Buyer the total amount paid by the Buyer in connection with the lot in pounds sterling, or where this is not reasonably possible, in Euros, which shall be the Buyer's sole remedy against Henry Spencer Auctioneers, in place of any other remedy that may be available, Henry Spencer Auctioneers shall not be liable for any special, indirect or consequential losses or damages (including, without limitation, for loss of profits or interest). For the purposes of this Condition 2, a 'deliberate forgery' means a lot that in Henry Spencer Auctioneers's reasonable opinion is an imitation created to deceive as to age, authorship, culture, date, origin, period or source, where the correct description of such matters is not reflected by the corresponding description in the catalogue , and which at the date of sale had a value materially less than it would have had if the lot had accorded with the corresponding description in the catalogue . No lot shall be considered to be a 'deliberate forgery' for the purposes of this Condition 2 by reason only of any damage, modification and/or restoration work of any kind (including repainting or over-painting).
(b) Subject to Condition 2(d), the guarantee given in Condition 2(a) shall only be available to the Buyer in respect of any lot on condition that, no later than 14 days after the date of sale of that lot, the Buyer must: (i) within 14 days of receiving any information that causes the Buyer to question the authenticity or attribution of the lot, notify Henry Spencer Auctioneers in writing of the Buyer's view that the lot is a deliberate forgery, specifying the lot number, the date on which the lot was purchased by the Buyer and the grounds upon which the Buyer has formed such view (which shall be accompanied by any evidence upon which the Buyer relies); and (ii) within 7 days after delivery of such notice, return the lot to Henry Spencer Auctioneers in the same condition as prevailed at the date of its sale to the Buyer and be able to transfer good title in the lot to Henry Spencer Auctioneers free from any liens, charges, encumbrances or other third party claims arising after such date of sale.
(c) Prior to rescinding any sale under Condition 2(a), Henry Spencer Auctioneers shall have the right to request the Buyer to obtain at the Buyer's cost the reports of 2 independent and recognised experts in the field, mutually acceptable to both Henry Spencer Auctioneers and the Buyer, setting out the reasons why the lot in question is considered to be a deliberate forgery and Henry Spencer Auctioneers agrees that it will give due and proper consideration to such expert reports. Henry Spencer Auctioneers shall not however be bound by any such expert report and reserves the right, in its absolute discretion and at its own expense, to seek the additional independent advice and views of any other expert or authority in making its final determination as to whether the lot in question is a deliberate forgery.
(d) Notwithstanding that any particular lot amounts to a deliberate forgery as defined in Condition 2(a), the respective Buyer shall have no rights to receive any refund under Condition 2(a) where: (i) the description of the lot in question at the date of its sale accorded with the then generally accepted opinion(s) of scholars and experts at such date or such description fairly indicated that there was a conflict of such opinions; (ii) the only method of establishing at the date of its sale that the lot in question is a deliberate forgery would have been by means of a scientific or other process not then generally accepted or available for use until after publication of the catalogue or a process which at the date of publication of the catalogue was unreasonably expensive, impractical to use or likely to have caused damage or (in Henry Spencer Auctioneers's reasonable opinion) loss of value to the lot; or (iii) the Buyer has either failed to notify Henry Spencer Auctioneers or return the lot in question to Henry Spencer Auctioneers within the respective period required by Condition 2(b), in respect of which Condition time shall be of the essence.
(e) The benefit of the guarantee given by Henry Spencer Auctioneers in this Condition 2 is not capable of being transferred and, in respect of any lot, is solely for the benefit of the respective Buyer of that lot.
3. Descriptions, condition of lots and Buyer's obligations
(a) The nature of the lots sold in any of Henry Spencer Auctioneers's auctions is such that they will rarely be in perfect condition and are likely, due to their nature and age, to show signs of wear and tear, damage, other imperfections, restoration or repair. All lots are sold as shown and/or described and otherwise in the condition they are in at the time of their sale, with all faults, imperfections and errors of description (whether expressly identified in the description or not).
(b) Every effort is made to ensure the accuracy of any statement as to age, attribution, authenticity, authorship, condition, date, origin and provenance of any lot, whether or not such statement forms part of the description of any such lot. Whether any such statement is made orally or in the catalogue , it is an expression of opinion given honestly after careful consideration and research and in accordance with the standard of care reasonably expected of an organisation of Henry Spencer Auctioneers's standing. It is not, and all prospective Buyers acknowledge that any such statement shall not be taken as being, in any way exhaustive or a statement or representation of fact.
(c) All prospective Buyers acknowledge that, where the following terms are used in the catalogue , they shall bear only the meaning given to them in this Condition 3(c) and, in any event, any such use of any such terms shall be a non-exhaustive expression of opinion only: (i) where the bold coloured text which forms the catalogue 's heading reads 'by' and is followed by the artist's full name (or the artist's initials, if his full name is unrecorded), the work is in our opinion by the artist; (ii) where the expression "attributed to" is used, the work is in our opinion possibly a work by the artist, in whole or in part; (iii) where the expression 'circle of' is used, the work is in our opinion a work of the period of the artist and showing his influence; (iv) where the expression 'follower of' is used, the work is in our opinion a work exucuted in the artist's style but not necessarily by a pupil; (v) where the expression 'manner of' is used, the work is in our opinion a work executed in the artist's style but of a later date; (vi) where the term "after" is used, the work is in our opinion a copy or pastiche (of any date) of a work by the artist. Where the term 'signed...' is used in our opinion the work has been signed by the artist, where the term 'with signature...' or 'bears signature...' is used in our opinion the signature is by a hand other than that of the artist.
(d) Lots sold are extremely varied in terms of age, condition and type and may be purchased for a variety of purposes. Unless otherwise specifically agreed in writing, no promise is made or warranty given that any lot is or will be fit for any particular purpose.
(e) With regard to any lot in which the Buyer is interested in bidding and prior to making any such bid, the Buyer undertakes: (i) to satisfy himself prior to the close of the auction as to the condition and description of the lot; (ii) to rely on his own judgment as to whether the lot accords with its description; (iii) particularly in the case of any lot of significant value, to seek any independent expert advice reasonably required (in view of the Buyer's particular expertise and the value of the lot) to satisfy himself as to the age, attribution, authenticity, authorship, condition, date, origin and/or provenance of the lot. To assist prospective Buyers, Henry Spencer Auctioneers will refer in the catalogue to serious and obvious faults and imperfections in lots for sale. However Henry Spencer Auctioneers's condition report is not and does not purport to be in any way exhaustive or a statement or representation of fact and all Buyers will be deemed to have knowledge of all matters that they could reasonably have been expected to find out given their particular expertise and their exercise of reasonable due diligence.
4. Henry Spencer Auctioneers's liability to Buyers
(a) Except for the guarantee given by Henry Spencer Auctioneers in Condition 2: (i) Henry Spencer Auctioneers gives no guarantees or warranties to the Buyer and any implied conditions or warranties, whether imposed by the Sale of Goods Act 1979 or otherwise, are hereby excluded to the fullest extent permitted by law; (ii) in particular, any representation or statement made by or on behalf of Henry Spencer Auctioneers, whether orally by any of its directors, officers, employees, agents or sub-contractors or printed in any catalogue or any advertisement, brochure, commentary, list, report or valuation, concerning any aspect or quality of any lot, including age, attribution, authenticity, authorship, condition, date, origin, price, provenance or value, is a non-exhaustive expression of opinion only, may be revised prior to the end of the auction and is not to be taken as being or implying any warranty or representation of fact by Henry Spencer Auctioneers; and (iii) neither Henry Spencer Auctioneers nor any of its directors, officers, employees, agents or sub-contractors shall be in any way liable for any errors or omissions in any such representations or statements, save for any representations made fraudulently.
(b) Without prejudice to Conditions 2 and 4(a), and save insofar as it relates to any liability for death or personal injury resulting from Henry Spencer Auctioneers's negligence (liability for which Henry Spencer Auctioneers in no way seeks to exclude or limit), Henry Spencer Auctioneers's liability for any claim brought against Henry Spencer Auctioneers by any Buyer in respect of any lot shall be limited to the Hammer Price for that lot and any additional fees actually paid by that Buyer to Henry Spencer Auctioneers in respect of that lot.
5. During the auction
(a) Henry Spencer Auctioneers has the right, at its absolute discretion, to refuse: (i) to allow any person to participate in any of its auctions; and (ii) any bid, without giving any reason.
(b) When making a bid for any lot, a prospective Buyer is doing so as principal and therefore will be held personally and solely liable for that bid, unless Henry Spencer Auctioneers has previously agreed with the prospective Buyer in writing that the prospective Buyer is doing so on behalf of an identified third party who is acceptable to Henry Spencer Auctioneers. In circumstances where Henry Spencer Auctioneers has so agreed, both the prospective Buyer and the third party will be jointly and severally liable for all obligations arising from the bid and the third party shall, by the prospective Buyer's bidding as his agent, be bound by the Conditions in the same way as if the third party were bidding personally.
6. After the sale
(a) In respect of any lot purchased, the Buyer will be liable to pay Henry Spencer Auctioneers the Hammer Price within 48 hours of the end of the auction.
(b) The property in any lot purchased shall not pass to the Buyer until the Buyer has made payment to Henry Spencer Auctioneers of the full amount due in respect of that lot and all other lots (if any) sold to that Buyer at the same sale in pounds sterling and good cleared funds. All cheques shall be made payable to "Henry Spencer Auctioneers Ltd" the payment by cheque will not be deemed to have been made until such time as the cheque clears. Henry Spencer Auctioneers reserves the right, in its absolute discretion, to request special clearance of any cheque presented to it by the Buyer, who shall be informed immediately, by Henry Spencer Auctioneers, of any such request. Henry Spencer Auctioneers will not be required to release any lot to the Buyer until such time as property in the lot has passed to the Buyer under this Condition 6(b) and any earlier release of the lot will not in any way affect the passing of property in the lot or the Buyer's unconditional obligation to make payment to Henry Spencer Auctioneers of the full amount due in respect of the lot.
(c) The export of any lot from the UK or import into any other country may be subject to one or more export, import or other licence(s) or permit(s) being granted in respect of that lot and it is the Buyer's sole responsibility to obtain all such licences and/or permits as are necessary. The denial of or any delay in obtaining any such licence or permit shall not justify the cancellation or rescission of the sale contract for the lot by the Buyer or any delay by the Buyer in making full payment for the lot in accordance with Condition 6(b).
(d) If the Buyer fails to pay Henry Spencer Auctioneers the full amount due on any or all lots sold to that Buyer at the same auction in pounds sterling and good cleared funds within 7 days of the auction, Henry Spencer Auctioneers shall, in its absolute discretion and without prejudice to any other rights that Henry Spencer Auctioneers may have, be entitled to exercise any one or more of the following rights or remedies: (i) charge interest at a rate equal to 4 per cent above Lloyds TSB Bank plc base rate on the full amount due on any or all such lots from the date of the auction to the date full payment of such amount is made to Henry Spencer Auctioneers in pounds sterling and good cleared funds; (ii) store any or all such lots at its premises or elsewhere at the Buyer's sole risk and expense; (iii) cancel the sale of any or all lots sold to the Buyer in that or any other Henry Spencer Auctioneers auction(s); (iv) hold the defaulting Buyer liable for breach of contract and commence legal proceedings for the recovery of the full amount due on any or all such lots, together with interest, legal fees and all other costs of such proceedings on an full indemnity basis; (v) resell any or all such lots by auction or private sale, on such terms as Henry Spencer Auctioneers thinks fit, and the defaulting Buyer shall be liable to fully indemnify Henry Spencer Auctioneers for any shortfall arising from such resale together with all reasonable costs and expenses incurred by Henry Spencer Auctioneers in connection with such resale; (vi) reject, at any future Henry Spencer Auctioneers auction, any bids made by or on behalf of the Buyer or to obtain a deposit from the Buyer before accepting any such bids; (vii) exercise all the rights and remedies of a person holding security over any property in Henry Spencer Auctioneers's possession owned by the Buyer, whether by way of lien, pledge, security interest or in any other way, to the fullest extent permitted by law, the Buyer being deemed to have granted such security to Henry Spencer Auctioneers and Henry Spencer Auctioneers being entitled to retain such property as collateral security for the Buyer's obligations to Henry Spencer Auctioneers; or (viii) take such other action as Henry Spencer Auctioneers deem necessary or appropriate.
(e) On the fall of the hammer the purchaser accepts full responsibility for the collection of bought goods and if Henry Spencer Auctioneers is asked to post or deliver the goods it is entirely at the purchasers' responsibility to insure the goods for loss or damage. Henry Spencer Auctioneers is not responsible for any loss or damage however sustained.
7. Data Protection
(a) In connection with the management and operation of Henry Spencer Auctioneers's business and the marketing and supply of Henry Spencer Auctioneers's services or as required by law, Henry Spencer Auctioneers may: (i) request that any Buyer and any bidder taking part in any Henry Spencer Auctioneers auction, and if so requested that Buyer and that bidder agree to, provide in a form acceptable to Henry Spencer Auctioneers written confirmation of their name, permanent address, proof of identity and creditworthiness and any other requested personal data; or (ii) obtain personal data about any Buyer and any bidder taking part in any Henry Spencer Auctioneers auction from third parties (e.g. credit information agencies). If any Buyer or any bidder taking part in any Henry Spencer Auctioneers auction provides Henry Spencer Auctioneers with any personal data, he agrees that Henry Spencer Auctioneers may use it for the above purposes and Henry Spencer Auctioneers will not use it for any other purpose without the Buyer's or the bidder's prior consent (as applicable) or, in the case of any sensitive personal data as defined in the Data Protection Act 1998, prior explicit consent.
(b) All Buyers and bidders taking part in any Henry Spencer Auctioneers auction should note that, for security and evidential purposes, telephone calls to Henry Spencer Auctioneers may be recorded and used for evidential purposes.
8. Export and import restrictions
Henry Spencer Auctioneers make no representations or give any warranties as to whether any lot is subject to any export restrictions from the UK or any import restrictions from any other country or as to whether any embargoes exist in relation to any particular lot(s).
9. Photographs, Illustrations, Images and Copyright
(a) Henry Spencer Auctioneers may photograph, described or illustrate any lot offered for sale. The copyright in all such photographs, illustrations, images and written material produced by or for Henry Spencer Auctioneers in relation to any lot shall remain at all times the property of Henry Spencer Auctioneers, who shall have the right to use such photographs, illustrations, images and written material at any time and in whatever way it deems appropriate. Any actual or prospective Buyer warrants that he shall not use any such photographs, illustrations, images and/or written material of or pertaining to that lot without Henry Spencer Auctioneers's prior written consent and each such Buyer shall fully indemnify Henry Spencer Auctioneers on a continuing basis against all costs, claims, demands, expenses, losses, damages and liabilities of whatsoever nature arising out of, or in connection with, any breach by such Buyer of the warranty given by him in this Condition 9(a).
(b) Henry Spencer Auctioneers make no representations and give no warranties as to whether any lot is subject to copyright or as to whether the Buyer of that lot will acquire any copyright or other reproduction rights in it.
10. General
(a) The Conditions are not assignable by any Buyer without Henry Spencer Auctioneers's prior written consent. However, the Conditions shall be binding on any successors, permitted assigns, executors, administrators and representatives of any Buyer.
(b) No act, omission or delay by Henry Spencer Auctioneers shall be deemed a waiver or release of any of its rights under the Conditions or otherwise.
(c) If any provision of the Conditions is found by any court with jurisdiction to be invalid, illegal or unenforceable for any reason, that provision shall be discounted and the remaining provisions shall continue to have full force and effect.
(d) The Conditions set out the entire agreement and understanding between Henry Spencer Auctioneers and any Buyer or any bidder taking part in any Henry Spencer Auctioneers auction with respect to the subject matter of the Conditions. It is agreed that, save in respect of liability for fraudulent misrepresentation or concealment, none of the aforementioned parties have entered into any contract pursuant to the Conditions in reliance on any representation, warranty or undertaking that is not expressly referred to in the Conditions. Henry Spencer Auctioneers in no way seeks to exclude or limit its liability for fraudulent misrepresentation or concealment.
(e) Any notice or other communication shall be in writing and, if sent by post, shall be deemed to have been received by the addressee on the second working day after posting or, if the addressee is based outside the UK, on the fifth working day after posting. If any written notice is delivered by hand, it shall be treated as having been received at that time and, if any written notice is sent by facsimile, it shall be deemed to have been received 24 hours after sending. Any notice sent to Henry Spencer Auctioneers should be sent and quote the relevant sale date and the lot number. Any notice that Henry Spencer Auctioneers sends to any Buyer or Vendor shall be addressed to the last address formally notified by him to Henry Spencer Auctioneers.
(f) The Contracts (Rights of Third Parties) Act 1999 is excluded by the Conditions and shall not apply to any contract made pursuant to them.
11. Law and jurisdiction
(a) The Conditions and all aspects or all matters, transactions or disputes to which they relate shall be governed by and construed in accordance with the laws of England and Wales. By bidding for any lot in any Henry Spencer Auctioneers auction, all actual or prospective Buyers shall be deemed to have irrevocably submitted, for the benefit of Henry Spencer Auctioneers, to the exclusive jurisdiction of the English Courts to settle all disputes arising in connection with all aspects of all matters or transactions to which the Conditions relate or apply.
(b) All Buyers and Vendors irrevocably consent to service of process or any other documents in connection with any legal proceedings by personal service, delivery by mail, facsimile transmission or in any other manner permitted by the laws of England and Wales or the law of the place of service at the last address of the Buyer known to Henry Spencer Auctioneers or any other usual address.
