Terms and Conditions of Acceptance of the Auction
Falk, Auctions (hereinafter referred to as the „Auctioneer“ ) shall accept only those items for commissioned auction sale which are entirely at the disposal of the Consignor or his/her agent. The Auctioneer is, however, not obliged to verify such a statement of fact and may therefore assume the satisfaction of this prerequisite and thus that the items handed over to the Auctioneer to be auctioned are their unencumbered property. The auction shall be performed on behalf and account of the Consignor signing the sales order. Furthermore, the Auctioneer assumes that the items consigned are used objects which may be slightly damaged. The state of newly restored and faultless items is to be confirmed in writing at the time of consignment. The Auctioneer assumes no responsibility for the frames of pictures and graphics delivered. The storage of the objects is at the risk of the Consignor respectively his/her agent. Restorations, repairs, revitalizations and similar measures pertaining to delivered objects shall be, at the discretion of the Auctioneer, at the expense of the consigning party, unless otherwise agreed upon by both parties in writing.
As a general rule, items consigned prior to the acceptance deadline will be auctioned in the course of the immediately following auction. The Auctioneer is entitled, however, to defer items which were already accepted to a later auction, transpiring subsequent to the immediately following auction. In such cases, he shall punctually inform the Consignor as to such a deferment.
If the Consignor revokes the order, either in part or in its entirety, the Consignor shall bear all of the Auctioneer’s expenses and costs as incurred by such a revocation as of the date of consignment.
4. Catalogues and Illustrations.
For each auction, one or more catalogues shall be published and edited with expertise, based on the information provided by the Consignor (see Paragraph 5 as follows). The Auctioneer may at his/her discretion add any supplementary information of a biographic and/or bibliographic nature and an appraisal and may state the sales estimate. Sales estimates are not binding, however, and no rights or claims may be derived from such sales estimates. The Auctioneer shall charge a processing fee amounting to CHF 30 (thirty Swiss Francs) per item for each catalogue entry. In case of larger collections and entire estates, an appropriate flat-rate shall be agreed upon by the Consignor and the Auctioneer.
Unless otherwise stated in the sales order, the Consignor entrusts the Auctioneer with the decision as to the illustrations of the items, their layout and their format. As a matter of principle, the size of the illustrations is based upon the sales value of the item. Additionally, each of the objects illustrated in the catalogue can be published on the internet for a fee of CHF 20 (twenty Swiss Francs) per item. Objects which are depicted on the front cover of the catalogue are also prominently placed in the advertisements and in the worldwide distributed preliminary announcements. Any contributions to the expenses which might have to be borne by the Consignor are listed on the sheet of tariffs. Any color negatives shall remain in the archives of the Auctioneer and are at his/her disposal for any further use.
5. Consignor’s Warranty.
The description of the item in the catalogue is based on the Consignor’s information, in particular as to the author, origin, state, completeness, age and value. Any claims arising from such statements against the Auctioneer will be referred to the Consignor by the Auctioneer. In case of a dispute, the Auctioneer is entitled to hand the item back to the Consignor and may claim reimbursement of / compensation for any money paid out and advances made as well as Consignor and Purchaser commissions and any further damages incurred as a result of such a dispute. If the sale is cancelled for any reason, the commission shall nevertheless be due in its entirety.
The limitation shall be fixed in writing at the time of consignment. Items may be consigned “BEST”, “LIMITLESS” or with a “RESERVE” (minimum hammer price).
BEST limits amount to approximately ½ (one-half) to 2/3 (two-thirds) of the estimate. Limits always include the commission and insurance premium (Paragraph 16) as well as any additional service charges (Paragraph 17). In the absence of any limits, or if „BEST“ or „LIMITLESS“ have been stated in the sales order, the Auctioneer is entitled at his/her discretion to either adjudicate the item or to buy in the item, if the Auctioneer deems the bids presented at the auction to be insufficient. The decision taken shall be binding for the Consignor. If the Consignor has explicitly stated a reserve, he/she shall have to pay a contribution to the expenses of 3% of the minimum price, but a minimum of CHF 50 (fifty Swiss Francs) per item plus any extra charges (Paragraphs 17 and 18), if that minimum price has not been bid and the item remains unsold. The items subject to such an agreement shall be clearly marked on the sales order. No limits may be stated for items below an estimated value of CHF 200 (two hundred Swiss Francs) and for unsold items of a previous auction which are reoffered for sale.
7. Pre-sale Viewing and Publicity.
Prior to the auction, the items to be auctioned shall be publicly exhibited in the salesrooms. The dates of the pre-sale viewing and auction shall be published in the print media, via mailings of preliminary announcements and the distribution of the auction catalogues.
8. Bids and Adjudication.
Whenever possible, the auction is performed according to the sequence indicated in the catalogue as well as in the auction program and in adherence to any limits stated. The item shall be adjudicated to the highest Bidder upon his/her verbal or written bid according to the terms of the auction. The adjudication phrase “going, going“, gone” will consequentially be used for each lot called up, irrespective of any bids for that lot. The Consignor shall therefore be unable to determine whether a particular consigned item was sold or bought in.
The course of the auction shall be recorded with details as to the sale or non-sale as well as the actual hammer price. After the auction, the Consignor shall receive a statement with a list of the auction results. In case of a discrepancy, the record shall be binding.
10. Cross Sale of the Auctioneer.
The Auctioneer is herewith explicitly authorized to act as a bidding competitor in order to purchase any of the items.
11. Follow-up Sale.
Unless otherwise stated by the Consignor, the Auctioneer is entitled to sell items which were not sold at the auction in the course of a follow-up sale, at the limit agreed upon or the price called up.
12. Transfer of Title.
The lot consigned shall remain the Consignor’s property until full payment by the Purchaser has been effected. In case of the default of payment by the Purchaser, the Consignor is required to hold the lot at the Auctioneer’s disposal up to the 90th (ninetieth) day subsequent to the auction.
13. Settlement and Payment.
As a matter of principle, settlement and payment will be concluded within a period of 8 (eight) weeks subsequent to the auction, if all the payments, charges and fees have been received, unless any other deadlines for payment have been proposed by the bidder and approved of by the Consignor. In all cases, the amount due shall be payable to the Consignor mentioned in the sales order and may not be assigned to any third party. Any objection to the written settlement is to be made within 10 (ten) days immediately following the receipt. Otherwise, the settlement will be deemed as approved.
14. Retention and Return in Case of Purchaser’s Default of Payment.
Following the auction, the Auctioneer is entitled to return any items as unsold for which the Purchaser has not made any payment within 90 (ninety) days. The Auctioneer is, however, authorized to act as a collecting agent on behalf of the Consignor, and the Auctioneer may retain the items concerned until the closure of the collection proceedings. If unsold items are returned, any advanced payments or accruing expenses are to be refunded.
15. Insurance and Liability.
The Auctioneer insures the items against burglary, theft as well as damages by fire and water. The insurance premium amounts to 1% (one percent) of the sales estimate. If no insurance is desired by the Consignor, the Consignor shall be liable and shall confirm his/her deferral of insurance and shall accordingly assume his/her liability explicitly in the agreement.
The Auctioneer shall receive a commission from the Consignor on any lot sold. The commission includes neither the insurance premium nor the catalogue/internet entry. The commission rates per hammer price, insurance premium and catalogue entry excluded, are as follows:
a) 25% (excl. VAT) for items of up to CHF 5,000.00
b) 20% (excl. VAT) for items of more than CHF 5,001.00, - 50,000.--
c) 18.5% (excl. VAT) for items of more than CHF 50,001.00,
This commission applies to professional as well as private sellers. No commission will be payable if items fail to reach the limit agreed upon or if the bids presented at the auction are deemed as insufficient (Paragraph 6). The insurance premium, the fee for the catalogue and/or internet entry and other object-based costs, however, shall nevertheless be payable by the Consignor.
17. Additional Services.
Any additional services and services provided in advance like restorations, repairs, passe-partouts, expertise, shipment from the Consignor to the Auctioneer, custom duties, import duties, etc., as well as contributions to the illustration expenses are to be paid by the Consignor separately. Unframed graphic arts which are to be bid as separate numbers have to be consigned with passe-partouts, otherwise the Auctioneer shall supply such passe-partouts and impose a fee for each of them to be payable by the Consignor. Shipment costs of the items to be auctioned on the Auctioneer’s premises, as well as for any returns of unsold items, are to be borne by the Consignor, and shipment / return shipment shall occur at his/her own risk.
18. Value-added Tax and Duties under Public Law.
During no stage of the sales procedure is the Auctioneer the owner of the items consigned to him/her. Any taxes, including value-added tax on the hammer price, are to be borne by the Consignor, if applicable. The value-added tax on commission and services to be paid by the Consignor, which was in fact paid by the Auctioneer, shall be subtracted from the proceeds of the sale.
19. Value-added Tax of Items from Abroad.
Consignments from abroad shall either be fully declared at the customs and subjected to the appropriate duties or, alternately, the authorities shall issue a transient import permit for such an item. If items are exempted from duties, there will be no costs for the time being, but if they are sold, the Auctioneer will settle any duties with the authorities in charge at the Consignor’s expenses. The hammer price is subject to VAT. Unsold items shall be re-exported. Any consignments from abroad shall to be discussed with the Auctioneer in advance.
20. Collection of Unsold Items.
The collection of unsold items has to be concluded within 4 (four) weeks after the settlement was delivered. Auctioned items which are not collected within the time specified above shall be stored at a fee of CHF 2 (two Swiss Francs) per day and per item. The risks and dangers of such storage shall be borne by the Consignor. Failure to collect unsold items within three months after the settlement was sent, shall be deemed as unconditional release of all the rights to those items and they shall become the Auctioneer’s property without any further notification and without any compensation.
21. Failure to Hold Auction due to Force Majeure.
If the auction cannot be held due to fortuitous events, the Auctioneer assumes no liability to compensate the party ordering the sale for any routine services rendered. Any reclaims for additional services, if those additional services have been rendered or are binding for the Auctioneer, remain in force.
22. Liability of the Auctioneer.
Any demands for compensation as made against the Auctioneer due to default, impossibility to perform, positive breach of contract, negligence at breach of contract or unauthorized actions are inadmissible, unless the damage has been caused by malicious or grossly negligent actions.
23. Acknowledgement of the Contract and Governing Law and Place of Jurisdiction.
By signing the written sales order, the Consignor acknowledges that the terms stated and defined therein and the terms of the auction are an integral part of the agreement. Any other verbal agreements shall not be valid. The agreement between the parties is governed by the Swiss Law. Zurich shall be the place of execution and jurisdiction. The Auctioneer reserves the right for himself/herself to take legal action against the Debtor at the Debtor’s place of residence.