1.1. The public auction on a voluntary basis [sections 383 sub-section 3, 474 sub-section 1 clause 2 German Civil Code (BGB)] shall be carried out by Winkler Auktionen GmbH (Winkler Auctions GmbH) – hereinafter “auctioneer” –, which sells the Auction items on commission for its own account and on behalf of the consignor.
1.2. The auctioneer shall designate those individuals who shall manage the auction in his name and on his behalf in so far as he himself does not assume the supervision. An agreement between the buyer and these individuals shall not be entered into.
1.3. The terms and conditions of auction shall apply directly for the auction and correspondingly for the sub sequent sale of items which have not received a bid in the auction, more closely specified in 13.1.
1.4. These terms and conditions of auction shall be published in the catalogue, Internet and on the premises of the auctioneer. By granting a commission or making a bid, the buyer shall expressly acknowledge the applicability of the terms and conditions of auction.
1.5. The buyer’s own terms and conditions of business shall have no validity.
1.6. In the event of and conflict between the German and the English version of these Terms and Conditions of Auction, the German version shall prevail.
2.1. In all cases of doubt, the German version of the catalogue shall prevail; catalogue details in other languages are merely a service of the auctioneer and shall have no relevance for the legal relationship with the buyer.
2.2. If questionable which item was bided for by the buyer and received acceptance at the auction, the number stated in the catalogue shall be decisive, in particular, not the title.
2.3. Consignor and auctioneer shall assume no liability if reproductions and photos in the printed catalogue deviate in color from the original object.
2.4. The auctioneer may combine or separate catalogue numbers and, to the extent there is a special reason to do so, withdraw them or call them in another sequence other than the one stated in the catalogue.
3.1. The estimated prices stated in the catalogue of Winkler Auktionen GmbH are merely a non-binding indication for the buyer; they may be minimum bidding prices if the auctioneer has agreed on a limit with the consignor.
3.2. All estimated prices are stated in euros; accordingly, the acceptance of bids shall imply in euros. Any and all statements in foreign currencies shall not be legally binding.
3.3. The total purchase price to be paid for the sold object shall comprise a) the price awarded the bid [hammer price]; b) buyer’s premium of the auctioneer [“Aufgeld”]; c) the share in 9.2. regulating the droit de suite; d) the value added tax if not included in buyer’s premium; e) accumulating costs and those to be proven by the auctioneer in individual cases if applicable or agreed cost-covering contributions.
4.1. Each bidder shall receive a paddle number after submitting a valid form of identification and admission to the auction by the auctioneer. Only bids made under this number shall be taken into account. Winkler Auktionen GmbH shall require from bidders with whom it is not familiar, a written application and current bank reference furnishing sufficient evidence of the bidder’s creditworthiness, no later than 24 hours before the auction begins. Irrespective of this, bidders may be requested, at the discretion of the auctioneer, to render sufficient surety before bidding begins; if this request is not complied with, the bid may be disregarded.
4.2. It shall be up to the bidders if they make their bids at the auction, in writing or by e-mail before the auction or by telephone; in other respects, 5.6 shall apply. Bids may not be revoked pursuant to the law governing long-distance sales, cf. sections 312 b - d BGB.
4.3. As a general rule, bidders shall acquire, in so far as the bid is awarded, in their own name and for their own account. If a bidder wishes to bid on behalf of a third party, it must expressly notify Winkler Auktionen GmbH at least 24 hours before the auction begins stating name and address of the party it is representing as well as submitting a current granted power of attorney. Otherwise, the purchase agreement shall be effected with the bidder in the event the bid is awarded. In cases of representation, proof of the credit standing of the represented party as laid down in 4.1. shall be carried along. Mandatory provisions of agency by operation of law [sections 164 et seq BGB] shall not be affected herewith.
4.4. If the bidder makes a bid in behalf of a third party, the third party shall be subject to the Terms and Conditions of Auction. The bidder and the third party will be jointly and severally liable for all obligations arising from the bid.
5.1. Bids from interested parties who are present in the auction house shall be made by clearly raising the paddle number.
5.2. Bids may also be made in absentia; either in writing [5.3.] or by telephone [5.4.] or by e-mail [5.5.]. Bids of those not present at the bidding shall only be permitted if the bidder has applied for admission from the auctioneer at least 24 hours before the auction begins. The application must name the object stating the catalogue number and title. In case of doubt, the catalogue number shall be decisive; uncertainties shall be on the bidder’s account. The auctioneer shall assume no guarantee for the handling of bids in the absence of the bidder. In particular, it will not be responsible for effecting and maintaining telecommunication connections or for transmission errors. This shall not apply in so far as the auctioneer is responsible for a mistake caused intentionally or through gross negligence.
5.3. A bid made in writing must be personally signed inter alia by the bidder and the purchase price offered for the object [3.3.a)] stated in numbers. Bids in writing or by e-mail are deemed bids already made in the auction. If several bids of the same amount have been made in writing for one and the same work of art, acceptance will be awarded to the bid that arrived first if a higher bid does not exist or has been made; in the case of receipt of bids on the same day, the bid awarded shall be decided by lots. Each bid in writing or via e-mail that is principally deemed a maximum bid shall only be utilized by the auctioneer in protecting its interests to the extent that it is necessary to outbid another offer.
5.4. Bids made by telephone will be carried out for the bidder by a person present in the auction house [switchboard operator]; the auctioneer may record these calls. The bidder shall consent to the recording upon making application to bid by telephone.
5.5. Bids via e-mail shall identify the bidder undoubtedly and must be made by using special forms provides by Winkler Auktionen GmbH. Uncertainties shall be on the bidder’s account. If this request is not complied with, the bid may be disregarded. The terms and conditions more closely specified in 5.3. directly apply for bidding via e-mail too.
5.6. To the extent Winkler Auktionen GmbH provides special forms with regard to bids made in absentia, such forms must be used by the bidder and signed if necessary. The bidder’s own forms shall not be accepted under any circumstances.
6. Conduct of the Auction and Sale of a Lot
6.1. The auctioneer will commence and advance the bidding in levels that he considers appropriate in the light of the value of the lot under auction and of competing bids.
The auctioneer is entitled to make consecutive bids in response to other bids on behalf of the consignor/seller up to the reserve placed on the lot. The auctioneer will not indicate during the auction that he is making such bids on behalf of the consigner/seller.
The bidder waives any claim that he/she might have in this connection against the auctioneer or the consigner/seller, save for in the event of negligence of willful misconduct.
6.2. The striking of the auctioneer’s hammer marks the acceptance of the highest bid provided the reserve price agreed with the consigner/seller has been reached. The bid shall be awarded if, after three calls on a bid, no higher bid is offered.
6.3. The buyer shall also remain bound to his bid if the auctioneer rejects a subsequent higher bid or its invalidity is determined no later than one month after acceptance of the bid.
6.4. Not only is the auctioneer entitled to reject a bid and/or refuse acceptance. In particular, he may also withdraw acceptance of a bid and offer the object once again if a higher bid offered on time was overlooked by mistake or if there are any other doubts with regard to the bid; the previous acceptance of a bid shall become invalid upon a new call for bids and/or acceptance.
6.5. In individual cases, the auctioneer may – in particular if the reserve (“limit”) set by the owner has not been achieved – award acceptance of the bid subject to reserve; thereupon, the auctioneer shall make express indication of acceptance of the bid through a reference “subject to reservation” or “u.V.” The accepted bid subject to reserve shall only then be effective if Winkler Auktionen GmbH confirms the bid in writing or through implied intention inter alia by means of an invoice within one month following the day of the auction. For the confirmation of the acceptance of the bid subject to reservation within the specified time limit, the timely dispatch to the address of the buyer notified to the auctioneer shall be sufficient within the one-month period. Without the confirmation of the acceptance of the bid, it shall be cancelled upon expiry of the above-mentioned time periods.
6.6. Upon acceptance of the bid, the risk of accidental deterioration or loss of the object awarded by bid shall pass to the buyer. The buyer shall pick up his acquisition no later than within two weeks after acceptance of the bid. Supplementary to this, 8.1 shall apply.
6.7. The auctioneer shall not be obliged to surrender the object until all amounts owed by the buyer have been paid in whole.
7.1. The amounts owed by the buyer [3.3.] shall be due and payable upon acceptance of the bid.
7.2. All invoices, which were issued during or directly following the auction, shall remain subject to review.
7.3. On principle, payments shall be made in cash. Cashless payments – incl. those paid by cheque – must be arranged individually and shall only be accepted as conditional payment. All costs, taxes, expenses, etc. connected with a cashless payment shall be borne by the buyer.
7.4. Default in payment shall come into existence 2 weeks after the date of the invoice. The buyer shall be charged a flat rate of EUR 15 for each reminder. Upon the time of default in payment, the entire purchase price shall bear interest of 2.5 % per month irrespective of further claims of the auctioneer or the consigner/seller. The owner may – acting through the auctioneer who decides at his discretion – insist upon payment together with acceptance or withdraw from the purchase agreement after granting a period of grace of two weeks. The right to demand damages shall not be excluded through withdrawal. Winkler Auktionen GmbH may inter alia convert its own damage into cash vis-à-vis the buyer. On this understanding, the claim to damages vis-à-vis the buyer shall amount to the consignor and buyer’s premium of the auctioneer, advertising costs, catalogue illustrations and insurance as well as the costs of return delivery and possibly a further auction including accruing storage, processing and additional insurance costs. Moreover, the buyer in default of payment shall settle the costs of bringing an action as well as a possible deficit in the proceeds of a new auction; he shall have no claim to the restitution of excess proceeds. In so far as the owner is entitled to the above claims, Winkler Auktionen GmbH may assert such claims directly against the buyer in its own name [litigation in one’s own name on another’s behalf].
7.5. Title to the object accepted by bid shall only pass over to the buyer after payment of the entire invoice amount to the auctioneer.
7.6. The buyer shall only be entitled to a setoff against the owner (consigner/seller) as well as vis-à-vis Winkler Auktionen GmbH if the claims are res judicata or have not been contested. He shall not be entitled to rights of retention or rights to refuse performance in so far as he is a businessman within the meaning of the statutory provisions.
7.7. In the cases of 7.4. [2nd paragraph], the auctioneer shall be entitled to exclude the buyer from bidding in further auctions; Winkler Auktionen GmbH shall be entitled to pass on his name and address to other auction houses for the purpose of blocking.
8. Collection of purchases
8.1. Winkler Auktionen GmbH shall store and insure the object to be collected by the buyer in accordance with 6.6. in the amount of the hammer price on its costs up to the time of expiry of the two week-period; the insurance shall cover property risks [incl. fire/ water/ theft/ burglary/ vandalism] as well as the risk of getting lost and the damage to the work of art on the premises of the auctioneer. Following expiry of the two-week period, The auctioneer shall be entitled to store the object at a forwarding agent’s and have it insured in the name of and on the account of the buyer or to bill a daily lump sum for the storage and insurance costs of storing the item on its own premises; the lump sum shall depend on the size of the object and ranges from EUR 1 to EUR 5 daily per item.
8.2. Dispatch of the items awarded by bid shall be carried out exclusively following written instructions of the buyer. Winkler Auktionen GmbH shall assume liability only for orderly delivery to the forwarding agent, carrier or any other persons designated to carry out the shipping; section 447 sub-section 1 BGB shall apply.
9. Buyer’s Premium and VAT; statutory artists resale rights charges
9.1. In addition to the hammer price, the buyer shall pay a buyer’s premium of 24 %. The value added tax of currently 19 % shall be included and not separately shown. In detail, the rules of section 25a German Turnover Tax Law (“UStG”) shall apply, so-called “margin taxation”. Items signed with a „*“ are subject to regular VAT taxation. The VAT of 19% will be added to the hammer price of these items as well as on the buyer’s net-premium. The VAT will be shown separately on the invoice. Reference is made to the catalogue regarding additional explanations. The VAT ID system will be applicable for European buyers. A VAT refund is only possible for Non - European exports.
9.2. The buyer shall assume in the ratio to the owner the payment of half the statutory artists resale rights (“droit de suite”) charges. This is shown separately on the invoice and shall be owed pursuant to section 26 sub-section 1 Copyright Act when selling the originals of a work of fine arts in which the copyright has not yet expired.
9.3. The obligation of the buyer to pay the regular costs set down in these terms and conditions of an auction such as reminders, transport and insurance costs, costs of bringing legal action, interest, etc. shall not be affected herewith.
9.4. The auctioneer shall be entitled, to assert the above-mentioned claims in its own name vis-à-vis the buyer – also in so far as they exist in the person of the owner – and to file suit for such claims if necessary.
10. Buyer’s obligation to inspect
10.1. On principal, all goods auctioned are used objects; they are of vague age and they are in a condition - particularly in a state of preservation - that corresponds to their provenance, age, utilization and application up to the present time. They are sold with all faults and imperfections and errors of description. Correspondingly, all objects shall be auctioned by the auctioneer in the condition and state in which they are found at the time of auctioning [“as is”].
10.2. The buyer undertakes to inspect and satisfy himself/herself prior to the sale as to the conditions and description of the lot. Therefore he/she shall use the help of a person of his/her choice, especially when staying distant from the place of the auction. He/She undertakes to seek any independent expert advice to satisfy yourself as to authorship, attribution, authenticity, genuineness, origin, date, age, provenance or condition of the lot, to the extent it is appropriate, given the Buyer’s’ own expertise and the value of the property.
10.3. The actual state and condition shall be the agreed specification within the meaning of the statutory provisions [= section 434 sub-section 1 clause 1 BGB], even if the auctioneer has drawn up a condition report for the buyer at its request. Such reports do not contain individual agreements that deviate from conditions as set forth under 10.1. / 10.2. they simply express the subjective evaluation of Winkler Auktionen GmbH. This is a customer service from which the buyer may not derive conditions deviating from the auction conditions or undertakings that go beyond such.
10.4. Objections that may be possible vis-à-vis the condition/ preserved condition of the object shall only be mentioned in the auction catalogue or the condition report if, in the opinion of the auctioneer, they significantly detract from the optical overall impression of the object. In this respect, lacking references with regard to repairs, completions or other measures on the object, restorations, damage, etc. do not, from an objective view, imply that the object is not in an objectionable condition.
11. Catalogue descriptions [in other respects]
11.1. All statements in the catalogue or in the corresponding presentation in the Internet are based on the published and otherwise generally accessible scientific findings up to the time of the auction and on the statements made by the consignor. They are not a part of the agreed specification and do not include any guarantees within a legal context. Any reference in the catalogue to particular faults or imperfections does not purport to be exhaustive and are for guidance purposes. The Buyer will therefore be deemed to have knowledge of all matters which the Buyer could reasonably have been expected to find out given the Buyer particular expertise and the exercise of reasonable due diligence. You should also note, that the auctioneer has not tested any electrical or mechanical goods prior to the sale whether in respect of their ability to function, their safety of operation, or otherwise; the Buyer is solely responsible for testing such goods before using them.
11.2. The auctioneer reserves the right to rectify catalogue statements with regard to the object to be auctioned. Rectification shall be made by means of written notification at the location of the auction and orally by the auctioneer directly before the auction. The rectified statements shall replace the catalogue description.
12. Guarantee and Liability
12.1. The following terms shall apply in respect of any guarantee for defects and claims for damages by the Buyer.
12.2. Winkler Auktionen GmbH is largely dependent on information provided by the Seller in relation to the auction lots. The auctioneer cannot and does not, compile a comprehensive research on each item of property offered for sale. Therefore the Buyer needs to conduct his own research and inspections according to Condition 10.2.
12.3. Winkler Auktionen GmbH and/or the consigners/sellers liability for defects is excluded, unless otherwise expressly stated in these Terms and Conditions of Auction. The auctioneer gives no guarantees or warranties to the Buyer; and any implied guarantees or warranties are excluded.
12.4. Apart from all cases of section 309 clause 7 BGB, the auctioneer’s liability on claims for damages is limited to willful misconduct and gross negligence. Any liability for indirect or untypical damages, as well as for damages caused by major force, including war, weapons of war employing atomic fission, radioactive contamination or acts of terrorism (as defined and applied by the auctioneer’s insurers), is excluded.
12.5. The auctioneer undertakes, however, to enforce his rights vis-à-vis the owner in accordance with customer-friendly conduct if there is a deviation from the catalogue statements which cancel or reduce the value or suitability of the object significantly, and if the well-founded claims are submitted within six month after the transfer; in the case of successful demands on the owner, the auctioneer shall indemnify the acquirer. Furthermore, Winkler Auktionen GmbH undertakes for the duration of six month – from the time of awarding the bid – to pay back the buyer’s premium if the lot subsequently proves to be a counterfeit, cf. 3.3. b). This shall be on condition that you are able to return the lot to the auctioneer free from any third party rights and the lot is in the same condition as at the date of the sale. The sale will not be cancelled when the only method of establishing that the lot is counterfeit is by means of processes that either are unreasonable expensive or impractical or likely to cause damage or loss of value to the lot.
12.6. All eventual claims of the buyer shall become statute-barred following expiry of one year after the handing over of the object awarded by bid. For the limitation of actions of the claims described in the first sentence of 12.4. (all cases of section 309 clause 7 BGB), the statutory period of limitation is deemed applicable.
13. Miscellaneous; final provisions
13.1. Within six weeks after the auction, objects that did not receive bids may be acquired by means of subsequent sale. This subsequent sale is a part of the auction; the interested party shall submit its offer in person, by telephone, in writing or via e-mail naming a certain amount such that the provisions of the terms and conditions for auction shall also apply correspondingly for its offer as well as its acceptance and any other legal handling.
13.2. These terms and conditions of auction shall govern any and all relationships between the buyer and Winkler Auktionen GmbH as well as the owner.
13.3. The law of the Federal Republic of Germany shall apply exclusively. These provisions shall not be subject to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
13.4. The language of negotiations and of the agreement shall be German. Descriptions and other documents including these terms and conditions that are drawn up in another language shall be solely of informal nature and not authoritative.
13.5. Place of performance and jurisdiction – in so far as permitted by and compatible with the law – shall be at the seat of Winkler Auktionen GmbH. This shall be the exclusive place of jurisdiction if the buyer is a businessman within the meaning of the statutory provisions or is not a resident of Germany; this shall also apply to actions arising from cheques or bills of exchange.
13.6. Should one or more of these terms and conditions of auction be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision by common consent of the parties that comes as close as possible to the original intended purpose of the provision.