31 August 2004 10.00am - 4.00pm
1 September 2004 10.00am - 7.00pm
2 September 2004 8.30am-10.30am
19 Augusta Street
Birmingham, B18 6JA
Terms & Conditions
In these Conditions :
a. "auctioneer" means Fellows or its authorised auctioneer, as appropriate;
b. "deliberate forgery" means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source but which is unequivocally described in the catalogue as being the work of a particular creator and which at the date of the sale had a value materially less than it would have had if it had been in accordance with the description;
c. "hammer price"means the level of bidding reached (at or above any reserve) when the auctioneer brings down the hammer;
d. "terms of consignment"means the stipulated terms and rates of commission on which Fellows accepts instructions from sellers or their agents
e. "total amount due"means the hammer price in respect of the lot sold together with any premium, Value Added Tax chargeable and any additional charges payable by a defaulting purchaser under these Conditions;
f. "sale proceeds " means the net amount due to the seller, being the hammer price of the lot sold less commission at the stated rate, Value Added Tax chargeable and any other amounts due to Fellows by the seller in whatever capacity and however arising;
g. "stated rate"means Fellows' published rates of commission for the time being and Value Added Tax thereon.
2. THE BUYER
a. Bidders are required to register their particulars and satisfy Fellows' security arrangements before entering the auction room to view or bid. The highest such bidder shall be the buyer at the hammer price and any dispute about a bid shall be settled at the auctioneer's absolute discretion. Bidders shall be deemed to act as principals unless there is in force a written acknowledgment by Fellows that a bidder is acting as an agent for a named principal. Once made, no bid may be withdrawn.
b. The right of Fellows to bid on behalf of the seller is expressly reserved.
3. MINIMUM INCREMENT
The auctioneer shall have the right to refuse any bid which does not exceed the previous bid by at least 10% or by such greater proportion as the auctioneer shall in his absolute discretion direct.
4. THE PURCHASE PRICE
The buyer shall pay the hammer price together with a premium thereon of 20% inclusive of VAT (or such other amount as shall be published by Fellows), the said premium not being negotiable and payable by ALL buyers. The seller authorises Fellows to retain beneficially the premium payable by buyers.
5. VALUE ADDED TAX
Value Added Tax on the hammer price is imposed on all items affixed with an asterisk thus - *. Value Added Tax is charged at the rate prevailing by law at the date of sale.
a. Immediately a lot is sold buyers shall:
(1) give to Fellows their names and addresses and, if requested proof of identity, and
(2) pay to Fellows the total amount due.
b. Fellows may, at its absolute discretion, agree credit terms with the buyer before an auction under which the buyer will be entitled to take possession of lots up to an agreed value in advance of payment by a stipulated future date of the total amount due. Cheques shall not be acceptable by Fellows (unless Fellows in its absolute discretion permits payment by such method) nor are third party references or credit facilities with other auction houses. If a cheque is tendered Fellows reserves the right to instruct its bank to check the buyer's status and account balance before exercising any discretion. Any credit arrangement must be settled at least 4 days before the relevant sale. Any permitted payment by credit card shall carry an extra charge to the buyer of such percentage of the total amount due as is displayed on the premises.
c. Any payments by a buyer to Fellows may be applied by Fellows towards any sums owing from that buyer to Fellows on any account whatever without regard to any directions of the buyer or his agent, whether express or implied.
7. TITLE AND COLLECTION OF PURCHASES
a. The ownership of any lots purchased shall not pass to the relevant buyer until they have made payment in full to Fellows of the total amount due.
b. Buyers shall at their own risk and expense take away any lots that they have purchased and (subject to 6b) paid for not later than 2 working days following the day of the auction after which they shall be responsible for any removal, storage and insurance charges.
c. No purchase can be claimed or removed until it has been paid for (or the provisions of clause 6b satisfied).
8. REMEDIES FOR NON-PAYMENT OR FAILURE TO COLLECT PURCHASES
If any lot is not paid for in full and taken away in accordance with these Conditions, or if there is any other breach of these Conditions, Fellows as agent for the seller shall at its absolute discretion and without prejudice to any other rights it may have, be entitled to exercise all or any of the following rights and remedies:
a. to proceed against the buyer for damages for breach of contract;
b. to rescind the sale of that lot and/or any other lots sold by Fellows to the defaulting buyer;
c. to re sell the lot (by auction or private treaty) in which case the defaulting buyer shall be responsible for any resulting deficiency in the total amount due (after crediting any part payment and adding any resale costs). Any surplus so arising shall belong to the seller;
d. to remove, store and insure the lot at the expense of the defaulting buyer and, in the case of storage, either at Fellows' premises or elsewhere;
e. to charge interest at a rate not exceeding 1.5% per month on the total amount due to the extent it remains unpaid for more than 2 working days after the sale;
f. to retain that or any other lot sold to the defaulting buyer until that buyer pays the total amount due;
g. to reject or ignore bids from the defaulting buyer at future auctions or to impose conditions before any such bids shall be accepted;
h. to apply any proceeds of sale of other lots due or in future becoming due to the defaulting buyer towards the settlement of the total amount due and to exercise a lien on any of the buyer's property in Fellows' possession for any purpose.
9. THIRD PARTY LIABILITY
All members of the public on the Auctioneer's premises are there at their own risk and must note the lay-out of the accommodation and security arrangements. Accordingly Fellows shall incur no liability for death or personal injury (except as required by law) or for the safety of the property of persons visiting prior to or at a sale.
10. COMMISSION BIDS
Whilst prospective buyers are strongly advised to attend the auction and are always responsible for any decision to bid for a particular lot and shall be assumed to have carefully inspected and satisfied themselves as to its condition, Fellows will if so instructed clearly and in writing execute bids on their behalf . Neither Fellows nor its employees or agents shall be responsible for any neglect or default in doing or failing to do so. Where two or more commission bids at the same level are recorded Fellows reserves the right in its absolute discretion to prefer the first bid so made.
PART II & III CONDITIONS
PART II CONDITIONS MAINLY AFFECTING SELLERS
11. WARRANTY OF TITLE AND AVAILABILITY
The seller warrants to Fellows and the buyer that the seller is the true owner of the property consigned or is properly authorised by the true owner to consign it for sale and is able to transfer good and marketable title to the property free from any third party claims.
a. The seller shall be entitled to place prior to the auction a reserve on any lot consigned, being the minimum hammer price at which that lot may be sold. Reserves must be reasonable and Fellows may decline to offer goods which in Fellows' opinion would be subject to an unreasonably high reserve (in which case goods carry the storage and insurance charges stipulated in the terms of consignment).
b. A reserve once set cannot be changed except with Fellows' consent.
c. Where a reserve has been placed only Fellows may bid on behalf of the seller.
13. AUTHORITY TO DEDUCT COMMISSION AND EXPENSES AND RETAIN PREMIUM
a. The seller authorises Fellows to deduct commission at the stated rate and all expenses incurred for the buyer's account from the hammer price and acknowledges Fellow's right to retain beneficially the premium paid by the buyer in accordance with these Conditions.
b. The seller authorises Fellows in their discretion to negotiate a sale by private treaty in the case of lots unsold at auction, in which case the same charges will be payable as if such lots had been sold at auction.
Fellows do not themselves undertake the collection of goods but may, as the seller's agent, instruct a contractor. Fellows accepts no liability for the actions of such contractor who contracts with the seller direct.
Fellows disclaims all liability for goods delivered to their saleroom without sufficient sale instructions, and reserves the right to make a minimum warehousing charge of £1.00 per lot per day. Unsold lots are subject to the same charges if the seller does not remove them within a reasonable time of notification. If not removed within three weeks Fellows reserves the right to sell them and defray charges from any net proceeds of sale or at the seller's expense to consign them to the local authority for disposal.
Fellows holds all goods on their premises and in their custody covered against the risks of fire, burglary and water damage on the scale of charges notified in the terms of consignment and payable by the seller up to the date of any sale and (in Fellows' discretion) the buyer thereafter until collection.
Fellows acts as agent only and disclaims any liability for default by the buyer or for paying out the seller before receiving payment by the buyer.
PART III GENERAL CONDITIONS.
18. Fellows act as agent for the seller and as such is not responsible for default by the seller or the buyer. The seller acknowledges that lots are sold subject to the stipulations of these Conditions in their entirety and on the terms of consignment as notified to consignors at the time of the entry of the lot.
19. Subject to the next following Condition concerning deliberate forgeries, any representation or statement by Fellows in any catalogue as to authorship, genuineness, origin, date, age, provenance, condition or estimated selling price is a statement of opinion only. Prospective buyers are given ample opportunities to view and inspect before any sale and prospective buyers must satisfy themselves as to all such matters. Neither Fellows or its employees or agents nor the seller accept liability for the correctness of such opinions and all conditions and warranties, express, implied or statutory are hereby excluded.
20. Any lot which proves to be a deliberate forgery (as defined) may be returned to Fellows by the buyer within 21 days of the auction provided it is in the same condition as when bought, and is accompanied by particulars identifying it from the relevant catalogue description and a written statement of defects. If Fellows is satisfied from the evidence presented that the lot is a deliberate forgery Fellows shall refund the money paid by the buyer for the lot (but not the amount of any consequential loss, damages, expenses or interest) provided that (1) if the catalogue description reflected the accepted view of scholars and experts as at the date of sale or (2) the buyer personally is not able to transfer a good and marketable title to Fellows, the buyer shall have no rights under this condition.
21. Fellows shall have the right, at its discretion, to refuse admission to its premises or attendance at its auctions by any person.
22. Any indemnity under these Conditions shall extend to all actions, costs, expenses, claims and demands whatsoever suffered or incurred by the person entitled to the benefit of it and Fellows declares itself to be a trustee of the benefit of every such indemnity so far as it is expressed to be for the benefit of its employees and agents.
23. Any notice to any buyer, seller, bidder or viewer may be given by first class mail or Swiftmail in which case it shall be deemed to have been received by the addressee 48 hours after posting.
24. Special terms may be used in catalogue descriptions in which case they must be interpreted in accordance with any glossary appearing at the commencement of the catalogue.
25. Any indulgence extended to buyers or sellers by Fellows notwithstanding the strict terms of these Conditions or the terms of consignment shall affect the position at the relevant time only and in respect of that particular concession only; in all other respects these Conditions shall be construed as having full force and effect.
26. English law applies to the interpretation of these Conditions.