Terms of Wholesale Public Auction and Sale
- DEUTSCHE PFANDVERWERTUNG Ostermayer & Dr. Gold GbR (hereinafter referred to as the “Auctioneer”) offers the property in a public auction at which the interested parties may participate personally (§ 474 of the German Civil Code — BGB) in its own name as consignee and for the account of the depositors (consignors) whose names are not disclosed. The enclosed Auction Conditions are recognized by the consignor as forming an integral part of the contract. The consignor is committed to the auction order (cf. Section 12) up to the settlement date referred to in Section 15.
- The consignor hereby confirms that he (she/it) has been informed of the place and date of the auction.
- The consignor confirms that he is owner of the consigned property with appropriate powers of disposition or is authorized to act on behalf of the owner; this also relates to the partner of the owner in the case of domestic property consigned to the Auctioneer.The supplier confirms that he/she fulfils the requirements for the application of differential taxation according to § 25a of the German Turnover Tax Law (Umsatzsteuergesetz). In particular, he/she fulfils one of the following conditions: 1) The supplier is a private individual or a public corporate body, who is not an entrepreneur. 2) The supplier is an entrepreneur, and the supplied item originates from the non-entrepreneurial segment of the supplier. 3) The supplier is an entrepreneur and the delivery of the item is subject to tax exemption, though, which leads to the exclusion of the input tax deduction. 4) The supplier is a small-scale entrepreneur and is exempted from the tax according to the laws of the member state responsible for taxation or excluded from taxation by other means. 5) The supplier is a reseller and has also used differential taxation on the delivery. If the supplier fails to inform the auctioneer that he/she fulfils none of these requirements, he/she bears the expenses for any necessary corrections to invoices and accounts.
- The property items are second-hand. The consignor is liable to the Auctioneer for all quality and legal defects with a corresponding application of the law of sale. The limitation period is 12 months and commences on the date of the knockdown. In the event of justified complaints by the buyer, the consignor shall be liable if he is guilty of a breach of duty, also for compensation.
- If defects or doubts on the lack of defects arise before the auction, the Auctioneer is entitled to withdraw the property in question from the auction or to postpone the auction to another auction date. If the Auctioneer considers it advisable to conduct researches, the resulting costs shall be borne by the consignor.
- The property will be auctioned at the best possible price (unlimited) or at the agreed minimum price (limit). No limitation shall basically apply with estimated prices up to 750.00 Euro. Any entry in the “Limit/Taxe” column only applies as an approximate value for details of the estimated price in the case of properties below 1000.00 Euro. Unlimited properties may be sold at 50 % of the estimated price referred to in the auction.
Precious metal properties may be sold below their material value. If an agreed limit cannot be reached, the Auctioneer is entitled to knockdown subject to reservation (UV-Zuschlag). The consignor is obliged to notify his decision on this immediately and to notify the Auctioneer in writing. The Auctioneer shall be granted compensation for the limits fixed for several properties. The Auctioneer is empowered to auction up to the limit for the consignor at his discretion and to issue the knockdown to the aforesaid if necessary. A reversal is made in this case.
- The property items are to be delivered to the Auctioneer at the cost and risk of the consignor. In accordance with § 25a (7) 3 of the German Turnover Tax Act (UStG), tax exemption is excluded for deliveries within the European Union. In the case of consignments from non-EU countries, the consignor is obliged to ensure that due and proper customs clearance is effected unless he has commissioned the Auctioneer to execute the importation formalities. Customs duty and clearance costs shall be for the account of the consignor. Turnover tax on imports may be refunded subject to the current turnover tax law. This shall not apply if property items remain unsold.
- The Auctioneer is commissioned to insure the property items against any risks (especially fire, theft and damage) at the cost of the consignor in the amount of the limit or — in the event of unlimited property items — based on the estimated price, in both cases less the agreed discount; more extensive liability of the insurer is excluded. Damages caused by terror and hazards from using chemical, biological, biochemical substances or electromagnetic waves as weapons dangerous to the public, regardless of other causes involved, remains excluded from the insurance cover. The share of costs of risk is equivalent to 1 % of estimated price (plus value-added tax). The period from the consignment until 2 weeks after settlement is insured. If the consignor does not wish insurance cover to be taken out by the Auctioneer, all statutory or contractual liability of the Auctioneer is thereby excluded unless the Auctioneer is guilty of wilful intent or gross negligence. The aforesaid liability exclusion shall also apply to the personal liability of the legal representatives, senior employees, other employees and vicarious agents of the Auctioneer.
- If property items remain unsold because the agreed limits are not reached, the Auctioneer shall be entitled to demand 3 % of the limit (plus value-added tax) as a lump-sum cost reimbursement (commission replacement — “PE”) if this is agreed in particular when the contract is signed. The consignor shall at all events be obliged to reimburse all and any disbursements incurred.
- Unsold objects must be picked up by the delivering party without request at the latest 14 days after billing in accordance with Section 15. After this period, the auctioneer can either place the objects into third party storage at the delivering party’s expense and risk and/or include the object in a further auction although in this case the limit is automatically reduced by 50%; at the third auctioning attempt the limit is set to 0. The delivering party will be informed about the inclusion of the object in a further auction. In case of storage, the delivering party shall also bear the any necessary insurance costs. In case of storage, a cost of up to € 10,- Euros (plus VAT) per day per object or the rate charged by the storage company will be charged. An issue date for stored objects must be agreed with the auctioneer. Each transportation, as well as packaging, insurance and return shipment of unsold objects will be undertaken at the delivering party’s cost and risk; the auctioneer is only the agent for these services. Return shipments will only be sent if the auctioneer or the company assigned to undertake this task has received a signed shipping order from the delivering party (the delivering party receives this form together with the auctioning bill) and when all the determined shipping costs and other claims made by the auctioneer have been paid.
- Proceeds attributable to the consignor for auctioned property items are settled by deducting the agreed commission and all disbursements from the hammer price. In the case of consignments from Germany and the European Union, the statutory value-added tax is included in the commission and is not shown separately. Catalogue costs are charged on a flat-rate basis. Description costs: 2.50 Euro per catalogue line, no description costs in miscellaneous catalogues. Illustration costs (in Euro): 1/1 of a page 150.00 (b/w), 220.00 (4c); 1/2 of a page 95.00 (b/w), 125.00 (4c); 1/4 of a page 75.00 (b/w), 95.00 (4c); smaller illustrations pro rata. Multi-page top presentation of prestigious articles: 450.00. Illustrations in miscellaneous catalogues (b/w): 25.00;. Corresponding cost reimbursement must also be made for items not sold at auction. The description and the catalogue illustration shall be made at the Auctioneer’s discretion. Additional disbursements, e.g. for individual advertising campaigns, transport, restoration work, travelling expenses and expert valuations, are charged on the basis of documented expenses. Value-added tax is payable on all disbursements. The statutory value-added tax is not reimbursable for foreign consignors. In order to settle the statutory right of stoppage in transit (Article 26 of the German Copyright Act — UrhG), the Auctioneer has paid a levy on the sales proceeds to the “Ausgleichsvereinigung KUNST” association for all original works of fine art and photographs created since 1900. The consignor bears half of the applicable levy in force on the settlement date (levy rate in January 2007: 1,9 % of the hammer price).
- If the consignor withdraws the assignment he shall pay a flat rate compensation equivalent to 30% of the estimated value of the property and disbursements incurred by the Auctioneer, plus value-added tax. This shall also apply of the execution of the order is cancelled on account of a culpable breach of duty by the consignor, especially on account of any defects in the quality of the property (cf. Section 5). The Auctioneer shall reserve the right to enforce additional damages. The consignor has the right to document or prove that no damage was incurred or that or that it is much lower than the flat rate.
- Statutory value added tax (MwSt) is currently 19% (January 2007).
- If it receives no auction proceeds from the buyer, the Auctioneer shall not be liable to the consignor for the settlement of the transaction after notification of its execution insofar as it informs the consignor of the name and address of the buyer currently known to it. Liability for the sale proceeds shall only apply as far as the Auctioneer is concerned if it has already handed over the auctioned property to the buyer.
- The delivering party will be invoiced in accordance with Section 1 six weeks after the end of the auction. Payment shall be made in accordance with the stated payment mode. The quickest and safest mode is payment via money transfer. Insofar as cash-free payment has been agreed, the down payment is put back for payment on demand. The auctioneer is entitled to offset auction revenue with the delivering party’s liabilities. In case the delivering party requests the payment of the bill as a cheque, the auctioneer shall not be liable for unauthorised use of the cheque.
- In accordance with § 25a of the German Turnover Tax Act (UStG), consignments in Germany and consignments from countries within the European Union are subject to a differential tax. Repayment of the value-added tax on the net proceeds is excluded therefore.
- If objects are not auctioned off in the intended auction, they shall remain for subsequent sale; the order conditions apply similarly.
- The costs of any legal pursuit or prosecution abroad are to be borne by the Buyer unless they are reimbursable under the respective national law.
- The present contract includes all agreements between the consignor and the Auctioneer. Any amendments to this auction contract must be made in writing in order to be valid.
- The place of performance is Dietramszell. If the buyer is a registered trader or if he has no general legal venue in Germany, the legal venue is Wolfratshausen. With the exception of the Uniform Laws of Purchase and Conclusion of Contracts, German law shall apply.
- If one or more provisions of these Auction Conditions are wholly or partially invalid, the validity of the other provisions will remain in full force and effect.
- The consignor took note of, and duly recognized, the aforesaid Conditions when the auction order was issued.
- Arbitration Clause
All disputes for arising in connection with these contract or its validity shall be finally settled on accordance with the Arbitration Rules of the Chamber of Industry and Commerce München without recourse to the ordinary courts of law. The place of arbitration is München. The arbitral tribunal consist of 3 arbitrators. The substantive law of Germany BGB & HGB is applicable to the dispute. The language of the arbitral proceeding is German.
When taking part in our wholesale auction you shall acknowledge the following terms of wholesale auction: This wholesale auction is only for traders and self-employed persons. Private persons can not take part in a wholesale auction.
The objects shall be sold in the condition that they are in at the time of the auction. The purchaser shall recognize that any reclamation is excluded and that no liability shall be assumed for goods, quality, completeness, special characteristics, obvious or hidden faults and other damage. Technical data, dimensions, declarations of weight, years of construction, mileage and operating hours indicated in the catalogue as well as the kilometres and hours of operation which are actually on the devices and vehicles are not binding. A prior viewing is expressly advised. This shall apply, above all, in case of written offers.
As a rule, public auction shall take place according to consecutive numbers. In particular cases, we shall reserve the right to change the order and to exclude or summarize positions. Individual items may be subject to prior sale.
The fall of the hammer shall ensue after the third call plus an auctioning charge ( please have a look at the auction catalogue ) and plus the legal value-added tax on the total amount.
In case of exportation to third countries, a deposit of security amounting to the legal value-added tax must be paid.
If several people make one and the same bid at the same time, the auctioneer shall decide. If doubt exists concerning the fall of the hammer, the auctioneer can put the item up for sale again. Each bid can be refused and the fall of the hammer rejected according to agreement with the principal. The highest bidder shall be committed to his/her bid, whereas the auctioneer shall only be entitled to knock down with reservation.
The amount of the minimum bid shall be determined seperately at the discretion of the auctioneer for the entire auction or for individual items.
After the knocking down, payment of the total claim must be made to the auctioneer in cash or by check confirmed with an irrevocable bank confirmation. If this obligation is not adhered to, the object of purchase shall be auctioned again. The first purchaser shall not be permitted to bid again. He/She shall remain personally liable for the loss. He/She shall not be entitled to a profit. Offsets shall not be admissible.
The purchaser shall be obliged to take delivery of the goods purchased at the auction.
All payments must only be made to the auctioneer or his/her authorized employee.
The object of purchase shall be valid as handed over to the purchaser upon the fall of the hammer, liability and danger of incidental ruin, loss or damage through fire, water, storm, theft and burglary also being transferred to the purchaser. This shall also be valid particularly for accessories.
The property shall, however, only be handed over to the purchaser after complete payment and encashment of the means of payment.
The auctioneer shall be entitled to collect purchase money and supplementary payments and sue for them in his/her own name for account of the principal.
Invoices issued during or directly after the auction must be checked again due to overburdening of Accounting, so that subsequent corrections shall be permissible.
The delivery of the goods purchased at auction shall only take place after full payment. The prices for every object are understood ex works/foundation, not dismounted and unloaded. The goods purchased at auction must nevertheless be collected completely within the deadlines given. Should the collection date be exceeded, the purchaser shall be liable for all consequential charges, e.g. further storage, possible release from store, dismounting.
Liability shall not be assumed for accidents during viewing, auctioning and collection. Putting devices into operation is strictly prohibited.
All visitors to the auction shall be liable for damages caused of any kind.
The purchaser shall be liable for accidents, damage to buildings, foreign objects, etc.
The aforesaid terms shall also apply to all objects put up for sale which are sold privately.
We shall charge € 75.00 plus value-added tax for the drawing-up of export declarations.
The place of performance and jurisdiction for auctions in Germany is Dietramszell.
Printing errors and mistakes are reserved.
Guarantee shall not be given for the conformity between photos and technical description as well as position numbers.
We shall record the data of all business partners in files and use them, which is indicated according to the Federal Data Protection Act.
The German version of these Conditions is legally binding