Buyers Terms & Conditions
In these Conditions:
(a) “auctioneer” means the firm of Mallams 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 Mallams 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 buyer 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 us by the seller in whatever capacity and however arising.
(g) “You”, “Your”, etc. refer to the buyer as identified in Condition 2.
(h) The singular includes the plural and vice versa as appropriate.
BIDDING PROCEDURES AND THE BUYER
(a) Bidders are required to register their particulars before bidding and to satisfy any security arrangements before entering the auction room to view or bid;
(b) the maker of the highest bid accepted by the auctioneer conducting the sale shall be the buyer at the hammer price and any dispute about a bid shall be settled at the auctioneer’s absolute discretion by reoffering the Lot during the course of the auction or otherwise. The auctioneer shall act reasonably in exercising this discretion.
(c) Bidders shall be deemed to act as principals.
(2) Our right to bid on behalf of the seller is expressly reserved up to the amount of any reserve and the right to refuse any bid is also reserved.
Bidding increments shall be at the auctioneer’s sole discretion.
THE PURCHASE PRICE
The buyer shall pay the hammer price together with a premium thereon of 20%. This premium is subject to VAT at the rate imposed by law.
VALUE ADDED TAX (VAT)
Value Added Tax on the hammer price is imposed by law on all items affixed with an asterisk or double asterisk. Value Added Tax is charged at the appropriate rate prevailing by law at the date of sale and is payable by buyers of relevant Lots. (Please refer to “Information for Buyers” for a brief explanation of the VAT position).
(1) Immediately a Lot is sold you will:
(a) give to us, if requested, proof of identity, and
(b) pay to us the total amount due in cash or in such other way as is agreed by us.
(2) Any payments by you to us may be applied by us towards any sums owing from you to us on any account whatever without regard to any directions of you or your agent, whether express or implied.
TITLE AND COLLECTION OF PURCHASES
(1) The ownership of any Lots purchased shall not pass to you until you have made payment in full to us of the total amount due.
(2) You shall at your own risk and expense take away any lots that you have purchased and paid for not later than 3 working days following the day of the auction or upon the clearance of any cheque used for payment after which you shall be responsible for any removal, storage and insurance charges.
(3) No purchase can be claimed or removed until it has been paid for.
REMEDIES FOR NON-PAYMENT OR FAILURE TO COLLECT PURCHASES
(1) 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, we, as agent for the seller and on our own behalf, shall at our absolute discretion and without prejudice to any other rights we may have, be entitled to exercise one or more of the following rights and remedies:
(a) to proceed against you for damages for breach of contract;
(b) to rescind the sale of that Lot and/or any other Lots sold by us to you;
(c) to resell the Lot (by auction or private treaty) in which case you 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 your expense and, in the case of storage, either at our 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 3 working days after the sale;
(f) to retain that or any other Lot sold to you until you pay the total amount due;
(g) to reject or ignore bids from you or your agent 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 you towards the settlement of the total amount due and to exercise a lien (that is a right to retain possession of) any of your property in our possession for any purpose until the debt due is satisfied.
(2) We shall, as agent for the seller and on our own behalf pursue these rights and remedies only so far as is reasonable to make appropriate recovery in respect of breach of these conditions.
THIRD PARTY LIABILITY
All members of the public on our premises are there at their own risk and must note the lay-out of the accommodation and security arrangements. Accordingly neither the auctioneer nor our employees or agents shall incur liability for death or personal injury (except as required by law by reason of our negligence) or similarly for the safety of the property of persons visiting prior to or at a sale.
COMMISSION AND TELEPHONE 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 we will if so instructed clearly and in writing execute bids on their behalf or by telephone. Neither the auctioneer nor our employees or agents shall be responsible for any failure to do so save where such failure is unreasonable. Where two or more commission bids at the same level are recorded we reserve the right in our absolute discretion to prefer the first bid so made.
WARRANTY OF TITLE AND AVAILABILITY
The seller warrants to the auctioneer and you 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.
The auctioneer normally acts as agent only and disclaims any responsibility for default by sellers or buyers.
TERMS OF SALE
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 the consignor at the time of the entry of the Lot.
DESCRIPTIONS AND CONDITION
(1) Whilst we seek to describe lots accurately, it may be impractical for us to carry out exhaustive due diligence on each lot. Prospective buyers are given ample opportunities to view and inspect before any sale and they (and any independent experts on their behalf) must satisfy themselves as to the accuracy of any description applied to a lot. Prospective buyers also bid on the understanding that, inevitably, representations or statements by us as to authorship, genuineness, origin, date, age, provenance, condition or estimated selling price involve matters of opinion. We undertake that any such opinion shall be honestly and reasonably held and accept liability for opinions given negligently or fraudulently. Subject to the foregoing neither we the auctioneer nor our employees or agents nor the seller accept liability for the correctness of such opinions and all conditions and warranties, whether relating to description, condition or quality of lots, express, implied or statutory, are hereby excluded. This Condition is subject to the next following Condition concerning deliberate forgeries and applies save as provided for in paragraph 6 “information to buyers”.
(2) Please note that condition reports are not printed in the catalogue or on our website however we are happy to provide them when requested subject to our terms and conditions of sale. The absence of any reference to condition in any description does not imply the lot is without fault.
(3) Private treaty sales made under these Conditions are deemed to be sales by auction for purposes of consumer legislation.
Notwithstanding the preceding Condition, any Lot which proves to be a deliberate forgery (as defined) may be returned to us by you 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 we are satisfied from the evidence presented that the Lot is a deliberate forgery we shall refund the money paid by you for the Lot including any buyer’s premium provided that (1) if the catalogue description reflected the accepted view of scholars and experts as at the date of sale or (2) you personally are not able to transfer a good and marketable title to us, you shall have no rights under this condition. The right of return provided by this Condition is additional to any right or remedy provided by law or by these Conditions of Sale.
1. We shall have the right at our discretion, to refuse admission to our premises or attendance at our auctions by any person.
(1) any right to compensation for losses liabilities and expenses incurred in respect of and as a result of any breach of these Conditions and any exclusions provided by them shall be available to the seller and/or the auctioneer as appropriate.
(2) Such rights and exclusions shall extend to and be deemed to be for the benefit of employees and agents of the seller and/or the auctioneer who may themselves enforce them.
2. 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.
3. Special terms may be used in catalogue descriptions of particular classes of items in which case the descriptions must be interpreted in accordance with any glossary appearing at the commencement of the catalogue.
4. Any indulgence extended to bidders buyers or sellers by us notwithstanding the strict terms of these Conditions or of 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.
5. English law applies to the interpretation of these Conditions.
ENDANGERED SPECIES LAWS
Due to international laws, any item on the Endangered species list (i.e. Ivory, Rhino horn etc.), whether it dates from the 18th/19th Century or the 1930s, requires reexport permits for bidders outside the EU (CITES). Some countries also require import permits as well and all permits must be in place prior to shipment. Mallams cannot be held liable if a purchaser buys a lot that comes within this field and then import/export licences cannot be arranged. Certain countries, particularly the USA, have their own Endangered Species Act (USESA) and possession or being involved in a commercial transaction with any item on this list can be an offence for a US resident. Therefore, it is the potential buyers responsibility to check Federal regulations before bidding for a lot, which comes under these or similar regulations.
Please note no license is required to sell or advertise within the EU if items are pre- 1947.
Mallams Fine Art Auctioneers offer an online bidding service via the-saleroom.com for bidders who cannot attend the sale. In completing the bidder registration on www.thesaleroom.com and providing your credit card details and unless alternative arrangements are agreed with Mallams Fine Art Auctioneers, you:
1. Authorise Mallams Fine Art auctioneers, if they so wish, to charge the credit card given in part or full payment, including all fees, for items successfully purchased in the auction via the-saleroom.com, and
2. confirm that you are authorised to provide these credit card details to Mallams Fine Art Auctioneers through www.the-saleroom.com and agree that Mallams Fine art Auctioneers are entitled to ship the goods to the card holder name and card holder address provided in fulfilment of the sale. Please note that any lots purchased via thesaleroom.com live auction service will be subject to an additional 3% commission charge + VAT at the rate imposed on the hammer price.
TERMS OF CONSIGNMENT FOR SELLERS
Interpretation. In these Terms the words ‘you’, ‘yours’, etc. refer to the Seller and if the consignment of goods to us is made by an agent we assume that the Seller has authorised the consignment and that the consignor has the Seller’s authority to contract. Similarly the words ‘we’, ‘us’, etc., refer to the Auctioneers
Commission is charged to sellers at the following rates:-
15% + VAT on the first £3,000, thereafter 10% + VAT per lot
£5.00 + VAT per sold lot, lotting and internet fee
No minimum commission
Removal costs. Items for sale must be consigned to the saleroom by any stated deadline and at your expense. We will be able to assist you with this process but any cost liability incurred to a carrier for haulage charges is solely your responsibility. This may be deducted from the proceeds of the sale if appropriate
Loss or damage warranty. (a) All goods on our premises or under our control are covered for loss or damage while so placed and sellers are charged at the rate of 1 ½% of the hammer price plus VAT. (b) If the owner of goods consigned instructs us in writing not to cover them, they then remain at owner’s risk unless and until the property in them passes to the Buyer or they are collected back by or on behalf of the owner, and clause 4(a) is inapplicable
Illustrations. The cost of any illustrations is borne by you at a nominal £10.00 + VAT per sold lot, £50 for a half page image and £90 for a full page image. The copyright in respect of such illustrations shall be the property of us, the auctioneers, as is the text of the catalogue
Minimum bids and our discretion. All lots are sold at the auctioneers discretion unless a reserve is agreed between us before the sale in accordance with clause 7. We may see Lots below the reserve provided we account to you for the same sale proceeds as you would have received had the reserve been the hammer price. If you specifically give us a “discretion” we may accept a bid of up to 10% below the formal reserve
You are 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. These must be confirmed in writing. Reserves must be reasonable and we may decline to offer goods which in our opinion would be subject to an unreasonably high reserve
A reserve once set cannot be changed except with our consent
Where a reserve has been placed only we may bid on your behalf and only up to the reserve (if any) and you may in no circumstances bid personally
Electrical items. These are subject to detailed statutory safety controls. Where such items are accepted for sale you accept responsibility for the cost of testing by external contractors. Goods not certified as safe by an electrician (unless antiques) will not be accepted for sale. They must be removed at your expense on your being notified. We reserve the right to dispose of unsafe goods as refuse, at your expense
Soft furnishings. The sale of soft furnishings is strictly regulated by statute law in the interests of fire safety. Goods found to infringe safety regulations will not be offered and must be removed at your expense. We reserve the right to dispose of unsafe goods as refuse, at your expense
The rights of disposal referred to in clause 8 and 9 are subject to the provisions of The Torts (Interference with Goods) Act 1977, Schedule 1, a copy of which is available for inspection on request
Descriptions. Please assist us with accurate information as to the provenance etc., of goods where this is relevant. There is strict liability for the accuracy of descriptions under modern consumer legislation and in some circumstances responsibility lies with sellers if inaccuracies occur. We will assume that you have approved the catalogue description of your lots unless informed to the contrary. Where we are obliged to return the price to the buyer when the lot is a deliberate forgery under Condition 15 of the Conditions of Sale and we have accounted to you for the proceeds of sale you agree to reimburse us the sale proceeds. The liability to reimburse the sale proceeds shall not arise where you are acting reasonably and honestly and are unaware of the forgery but we are or ought to have been aware of it
Unsold items. There are no unsold charges. If an item is unsold it may with your consent be re-offered at a future sale. Where in our opinion an item is unsaleable you must collect such items from the saleroom promptly on being so informed. Otherwise, storage charges may be incurred. We reserve the right to charge for storage in these circumstances at a reasonable daily rate
Withdrawn items. These are liable to incur a charge of 20% plus VAT of the higher estimate if withdrawn after being catalogued
Conditions of Sale. You agree that all goods will be sold on our Conditions of Sale. In particular you undertake that you have the right to sell the goods either as owner or agent for the owner. You undertake to compensate us and any buyer or third party for all losses, liabilities and expenses incurred in respect of and as a result of any breach of this undertaking
Authority to deduct commission and expenses and retain premium and interest.
You authorise us to deduct commission at the stated rate and all expenses incurred for your account from the hammer price and consent to our right to retain beneficially the premium paid by the buyer in accordance with our Conditions of Sale and any interest earned on the sale proceeds until the date of settlement
You authorise us in our discretion to negotiate a sale by private treaty not later than the close of business on the day following the day of the sale 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 and so far as appropriate these Terms apply
Warehousing. We disclaim all liability for goods delivered to our saleroom without sufficient sale instructions and reserve the right to make minimum warehousing charge of £5.00 per lot per day. Unsold lots are subject to the same charges if you do not remove them within a reasonable time of notification. If not removed within three weeks we reserve the right to sell them and defray charges from any net proceeds of sale or at your expense to consign them to the local authority for disposal
Settlement. After sale settlement of the net sum due to you normally takes place within 18 working days of the sale (by crossed cheque to the seller) unless the buyer has not paid for the goods. In this case no settlement will then be made but we will take your instructions in the light of our Conditions of Sale. You authorise any sums owned by you to us on other transactions to be deducted from the sale proceeds. You must note the liability to reimburse the proceeds of sale to us as under the circumstances provided for in Condition 10 above. You should therefore bear this potential liability in mind before parting with the proceeds of sale until the expiry of 18 working days from the date of sale
Goods accepted for sale in deteriorating condition. Although taking every care Mallams Ltd do not accept liability for the continuing deterioration of items received in poor condition and pending sale or remaining unsold. Non-exclusive examples include fragile works on paper, dry or peeling paint on canvas, moth damage to carpets, rising veneers on furniture and loose book bindings nor do Mallams Ltd accept liability for damage to plaster or gesso picture or mirror frames.