Hargesheimer Kunstauktionen Düsseldorf GmbH (hereinafter “Hargesheimer Kunstauktionen”) conducts public auctions pursuant to Sections 474 (1) sentence 2 and 383 (3) sentence 1 of the German Civil Code (BGB), acting as commission agent in its own name and on behalf of its consignors (principals), who shall remain

Hargesheimer Kunstauktionen Düsseldorf GmbH (im Nachfolgenden als Hargesheimer Kunstauktionen bezeichnet) versteigert in einer öffentlichen Versteigerung gemäß §§ 474 Abs.1 Satz 2, 383 Abs. 3 Satz 1 BGB als Kommissionärin im eigenen Namen und für Rechnung ihrer Auftraggeber:innen (Kommittent:innen), die unbenannt bleiben.

1. CONDITION / WARRANTY

1.1. The items to be auctioned may be viewed and examined prior to the auction, potential buyers being liable for any damage caused by them to the items exhibited.

1.2. The works of art that are up for auction are, without exception, used items and sold as is. They are in a state of repair that corresponds to their age and provenance. Objections to the state of repair are only mentioned in the catalogue if, in the opinion of Hargesheimer Kunstauktionen, they adversely affect the visual impression of the work of art as a whole. Lack of information regarding the state of repair does therefore not justify any claims based on a guarantee or agreement on the condition.

Potential buyers may request a condition report for every work of art. This report, whether verbal or written, does not contain any differing, individually negotiated terms and expresses Hargesheimer Kunstauktionen’s subjective assessment only. The information contained in the condition report is provided to the best of our knowledge and belief. It does not constitute any guarantee or agreement on the condition and serves solely for the provision of non-binding information. The same applies to general information of any kind, whether verbal or written.

In all cases, the actual state of repair of the work of art at the time of the acceptance of the bid shall be the agreed condition within the meaning of statutory provisions (Sections 434 et seq. of the German Civil Code (BGB)).

1.3. All information contained in the catalogue is based on knowledge published up to the date of the auction and on other general scientific knowledge available to the public. Hargesheimer Kunstauktionen reserves the right to correct catalogue information regarding the works of art to be auctioned. Said correction shall be made by written notice at the location of the auction and/or orally by the auctioneer immediately before the specific work of art is auctioned. The corrected information shall replace the catalogue description.

1.4. Hargesheimer Kunstauktionen expressly excludes any liability for potential defects, provided that Hargesheimer has complied with its duty of care obligations.

1.5. Irrespective of the provisions of Clause 1.2, the information in the catalogue relating to authorship of the work of art shall form part of the agreed condition with the buyer. The auctioneer assumes no liability for defects insofar as he has fulfilled his duty of diligence. However, he undertakes to assert complaints brought forward in due time within the applicable limitation period against the consigner. The limitation period regarding authenticity shall be twelve months; for any other defects, six months from the date of sale. In the event of successfully taking recourse against the consigner, the auctioneer shall refund the purchase price including the buyer’s premium to the buyer.

1.6. Claims for damages against Hargesheimer Kunstauktionen for legal or material defects and on other legal grounds (including compensation for futile expenses or costs of expert opinions) are excluded unless they are due to intentional or grossly negligent conduct by Hargesheimer Kunstauktionen, to the breach of essential contractual obligations by Hargesheimer Kunstauktionen, or are caused by injury to life, body, or health.

2. CONDUCT OF AUCTIONS, BIDS

2.1. The estimates stated in the catalogue are reserve prices.

2.2. Hargesheimer Kunstauktionen reserves the right to combine, separate, offer out of sequence or withdraw numbered lots during an auction.

2.3. All bids are considered as submitted by the bidder on his own behalf and for his own account. If a bidder wishes to bid on behalf of a third party, he must notify this 24 hours prior to the start of the auction, stating the name and address of the party he is representing and submitting a written power of attorney. Otherwise, the purchase contract is concluded with the bidder when the bid is accepted.

2.4. After presentation of a valid personal identification document and admission to the auction, each bidder will be given a bidder’s number by Hargesheimer Kunstauktionen. Only bids submitted under this number will be included in the auction. Bidders previously unknown to Hargesheimer Kunstauktionen must submit a written application no later than 24 hours before the auction, together with a document of identification. Hargesheimer Kunstauktionen may request a recent bank reference or other references for admission to the auction.

2.5. The initial bid price is determined by the auctioneer; bids are generally submitted in Euros at increments of up to 10% above the previous bid. Bids may be made in person in the auction room or during the live auction. Absentee bids may be made in writing, by telephone, over the internet, or via a platform approved by Hargesheimer Kunstauktionen.

2.6. All bids are based on the hammer price and are subject to the buyer’s premium, VAT, and customs charges where applicable.

2.7. In the event of identical bids, irrespective of whether they were submitted in the auction hall, by telephone, in writing, or via the internet, the decision shall be made by drawing lots. Written bids or bids submitted via the internet shall only be taken into consideration to the extent necessary to outbid another bid.

2.8. Absentee bids are generally permitted if the bidder has applied to Hargesheimer Kunstauktionen at least 24 hours prior to the start of the auction and has provided the additional information pursuant to Clause 2.4. The application must specify the work of art together with its catalogue number and catalogue description. In case of doubt, the catalogue number shall prevail; the bidder bears the consequences of any uncertainties.

2.9. Hargesheimer Kunstauktionen provides the service of executing absentee bids for the convenience of clients free of charge. Accordingly, Hargesheimer Kunstauktionen provides no guarantee for the execution or flawless handling of such bids, except in cases of intent or gross negligence. Absentee bids are equivalent to bids made in the auction.

2.10. Written bids must be signed by the bidder. In the event of written bids, the interested party authorises the auctioneer to submit bids on his behalf.

2.11. Telephone bids may be recorded by Hargesheimer Kunstauktionen. By applying for telephone bidding, the applicant agrees to the recording of telephone conversations. Hargesheimer Kunstauktionen is not liable for establishing or maintaining telecommunications connections or for transmission errors.

2.12. Internet bids may be submitted as “pre-bids” prior to the auction, as “live bids” during a live web-cast auction, or as “post-bids” after conclusion of the auction in accordance with the provisions set out below. Bids received via the internet during an auction will only be considered if the auction is conducted as a live web-cast auction. Internet bids are only admissible if the bidder has been authorised by Hargesheimer Kunstauktionen by being provided with a username and password. Bids are valid only if they can be unequivocally attributed to the bidder by means of such username and password. Internet bids are recorded electronically. The accuracy of the corresponding records is acknowledged by the bidder/buyer, who remains entitled to prove their inaccuracy. Live bids are equivalent to bids submitted in the auction hall.

2.13. The after-sale forms part of the auction. In the event of post-bids, a contract is concluded only after Hargesheimer Kunstauktionen accepts the bid.

2.14. By making a bid, whether verbally in the auction, by telephone, in writing, by fax, or via the internet, the bidder confirms that he has taken note of these Terms of Sale by Auction and accepts them.

2.15. In distance contracts, the right of withdrawal and rescission shall not apply to written, telephone, or internet bids unless the bid was made in the after-sale.

3. THE AUCTION

3.1. A bid is accepted after the auctioneer has called the highest bid three times. Upon acceptance of the bid, a purchase contract is concluded between Hargesheimer Kunstauktionen and the bidder whose bid was accepted. The purchaser is obliged to pay for and collect the purchased item.

3.2. Hargesheimer Kunstauktionen may refuse to accept a bid or accept it subject to reservation. If a bid is refused, the previous bid remains valid. If several individuals place the same bid and no higher bid is made after three calls, the decision shall be made by drawing lots. Hargesheimer Kunstauktionen may revoke acceptance and re-offer the item if a higher bid made in due time was inadvertently overlooked, if the highest bidder withdraws his bid, or if there are other doubts regarding the acceptance. If no bid is successful although several bids were submitted, Hargesheimer Kunstauktionen shall be liable only in cases of intent or gross negligence.

3.3. A bidder remains bound to a bid accepted subject to reservation for a period of one month. A bid accepted subject to reservation becomes effective only if Hargesheimer Kunstauktionen confirms the bid in writing within one month after the date of the auction by issuing a corresponding invoice.

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4. PURCHASE PRICE AND PAYMENT

4.1. In addition to the hammer price, the buyer shall pay a premium of 28%. This includes statutory VAT, which is not shown separately due to the application of the margin scheme pursuant to Section 25a of the German VAT Act. Lots marked with an asterisk (*) are subject to standard VAT. In such cases, statutory VAT (currently 19%) shall be levied on the sum of the hammer price and the buyer’s premium.

4.2. VAT shall not be charged on shipments to third countries (outside the EU) or – provided the VAT identification number is supplied – to companies in other EU Member States. Buyers who personally export purchased items to third countries shall be reimbursed the VAT once Hargesheimer Kunstauktionen has received the required export and purchaser certificates.

4.3. For items marked with two asterisks (**), a flat-rate charge of 2% of the hammer price shall be payable to satisfy the statutory resale right pursuant to Section 26 of the German Copyright Act (Urhebergesetz, UrhG).

4.4. Invoices issued during or immediately after the auction are subject to verification; errors are reserved.

4.5. Payment of the total amount due upon acceptance of a bid must be made in cash, by bank transfer, or by credit card (plus 3% for processing charges). All taxes, costs, transfer or encashment fees (including bank charges deducted by Hargesheimer Kunstauktionen) shall be borne by the buyer. Purchasers attending the auction in person must pay immediately after acceptance of the bid. Without prejudice to the immediate due date, absentee bids may be paid within 14 days of the invoice date without being considered in default. Default in payment occurs two weeks after the invoice date.

4.6. Auctioned items shall generally only be handed over after full payment of all amounts owed by the buyer has been received.

5. COLLECTION AND ASSUMPTION OF RISK

5.1. Acceptance of a bid imposes an obligation to collect the item. Buyers who are not present must collect their items immediately after Hargesheimer Kunstauktionen has advised them that their bid has been successful. Hargesheimer Kunstauktionen shall organise the insurance and shipment of the work of art to the buyer only upon the latter’s written instructions and at his cost and risk. Since the purchase price is due immediately and the buyer is obliged to promptly collect his items, he shall be in default of acceptance no later than two weeks after acceptance of the bid or post-bid. At that time, irrespective of whether the items have been delivered, the risk shall pass to the buyer. Each lot is at the sole risk of the buyer from the fall of the hammer.

5.2. If the buyer has not collected the items from Hargesheimer Kunstauktionen at the latest three weeks after acceptance of the bid and/or notification thereof, Hargesheimer Kunstauktionen shall request the buyer to collect the items within one week. Upon expiry of this period, Hargesheimer Kunstauktionen shall be entitled to store the items at the buyer’s cost and risk. The buyer shall be informed prior to storage. Any purchases not collected within three weeks from the date of the invoice shall be subject to handling and storage charges of €1 plus 19% VAT per lot per day. Irrespective of this, Hargesheimer Kunstauktionen may demand performance of the contract or assert statutory rights for breach of duty. For the calculation of any damages, reference is made to Clauses 4 and 7 of these Terms and Conditions.

5.3. Hargesheimer Kunstauktionen shall under no circumstances be liable for loss of or damage to items that have not been collected or have not been handed over due to non-payment, unless Hargesheimer Kunstauktionen has acted intentionally or with gross negligence.

6. RETENTION OF TITLE, OFFSET, RIGHT OF RETENTION

6.1. Title to the work of art shall pass to the buyer only upon full receipt of all payments owed pursuant to Clauses 4 and 7.

6.2. The buyer may only offset claims against Hargesheimer Kunstauktionen with claims that are undisputed or have been legally and finally determined.

6.3. Insofar as the buyer is a merchant registered in the commercial register, he waives his rights under Sections 273 and 320 of the German Civil Code (BGB).

7. DEFAULT

7.1. The purchase price is due upon acceptance of the bid. If payment is made in a foreign currency, any exchange rate losses and bank charges shall be borne by the buyer.

7.2. In the event of default in payment, default interest of 1% per month shall be charged. The buyer is entitled to provide evidence that the loss is lower or that no loss has occurred. In addition, in case of default, Hargesheimer Kunstauktionen may elect to demand performance of the purchase contract or rescind the contract after setting a reasonable deadline for performance. In the event of rescission, all rights of the buyer to the purchased work of art shall lapse and Hargesheimer Kunstauktionen shall be entitled to claim damages amounting to the lost fee for the work of art (consignor commission and buyer’s premium). If the item is re-auctioned, the defaulting buyer shall additionally be liable for any shortfall in proceeds compared with the earlier auction and for the costs of the repeat auction; he shall not be entitled to any excess proceeds. Hargesheimer Kunstauktionen reserves the right to exclude the buyer from further participation in auctions.

7.3. One month after default has occurred, Hargesheimer Kunstauktionen shall be entitled, and if requested by the consigner obliged, to provide the consigner with the name and address of the buyer.

8. DATA PRIVACY DECLARATION

8.1. The buyer agrees that his name, address and any consignments may be stored electronically and processed by Hargesheimer Kunstauktionen for the purpose of fulfilling and performing the contractual relationship, as well as for providing information about future auctions and offers. Should the buyer fail to meet his contractual obligations within the scope of this contractual relationship, he consents to this fact being entered into a list accessible to German auction houses. The buyer is entitled to object to the future collection and use of his data by deleting this clause or by notifying Hargesheimer Kunstauktionen at a later date. Information on data protection can be found on our website: https://kunstauktionen-duesseldorf.de/datenschutzerklaerung

9. MISCELLANEOUS PROVISIONS

9.1. Politically exposed persons and their immediate family members are subject to disclosure obligations within the meaning of the Money Laundering Act (MLA). In accordance with current MLA regulations, we are required to retain a copy of the bidder’s identification for written bids exceeding €7,500 as well as for auction hall, live, and telephone bids. In the case of legal entities (e.g. GmbHs), an extract from the commercial register or a comparable official register is also required.

9.2. These Auction Terms and Conditions govern all legal relationships between the buyer and Hargesheimer Kunstauktionen. The buyer’s general terms and conditions shall not apply. There are no verbal ancillary agreements. Amendments must be made in writing to be valid.

9.3. Where legally permissible, Düsseldorf shall be the place of performance and jurisdiction. The law of the Federal Republic of Germany shall apply exclusively. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

9.4. The foregoing provisions shall apply mutatis mutandis to the private sale of items consigned for auction.

9.5. Should any of the above provisions be invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a valid provision that most closely reflects the economic purpose of the invalid provision. The same shall apply in the event of any contractual gap. In cases of doubt, the German version of these Auction Terms and Conditions shall prevail.

Frank Hargesheimer | Susanne Hargesheimer
(Auctioneer | Publicly appointed and sworn auctioneer for arts and antiques)
Date: 4 May 2022