Conditions of sale at auctions for Auktionshaus HERR/ Deutschland GmbH

1. Auktionshaus HERR/ Deutschland GmbH

Auktionshaus HERR/ Deutschland GmbH (hereinafter referred to as: „auctioneer“) auctions in public, voluntarily in the name and for the account of third parties.

2. Conduct of auction

Auction takes place in Euro. Calling prices are such prices listed in the catalogue as limit prices. Calls for offers are increased according to the auctioneers discretion, however, in general in steps that are 5 % -10 % above the preceding bid.

Auctioneer is entitled to offer numbers outside the order of the catalogue as well as merge, divide and/or pull them out. Auctioneer is entitled to deny the acceptance of a bid provided that good cause is shown. Such good cause is given in particular, if auctioneer does not know a person who places a bid and such person refrains from supplying security at the latest until start of auction.
Auctioneer is entitled to request a current certificate of liquidity of a bank or savings bank or a cash deposit.

3. Preview

All items on offer at auction can be viewed and examined (Preview). Preview takes place in the premises of auctioneer in Cologne. Upon request condition reports and further information beyond the catalogue text are provided to people who bid in absence.

4. Items on offer at auction/ catalogue description

Items are used and come to auction in such condition in which they are at the time of the acceptance of the bid. Catalogue descriptions and respective descriptions on the internet sites of auctioneer are made according to best knowledge and conscience, but are no guarantees according to law. The same applies respectively for oral information, information in writing or information in text form. Further buyer is hereby informed that due to technical reasons pictures of the items, particularly in the catalogue or on the internet sites as well as in the event of sending them by E-Mail may differ from the respective original, particularly regarding colour and resolution.

Art work is in general on offer unframed and without pedestal, unless the description explicitly guarantees otherwise. In order to clarify it is hereby indicated, that such guarantee takes place in text form or in writing. It is, however, irrelevant if the picture of the art work shows a Frame or pedestal.

5. Catalogues

Catalogues will be provided upon request with costs to such interested parties who have not subscribed to the auctioneer regarding the receipt of catalogues. Costs are currently equated as follows:

  • 20 € for shipping within Germany,
  • 30 € for shipping outside Germany (worldwide)

Whereupon costs include mailing expenses.

6. Bids

Bids can be made in writing or in text form (e.g. by mail, fax or E-Mail) or by telephone or by traditional signs in the auction hall, however, bids by telephone are possible starting from a limit of minimum 250 € and confirmation of such bid has to reach auctioneer in writing or in text form at least 24 hours prior to the respective auction, whereupon potential buyer is obliged to use the auctioneers bidding template, which is attached to the catalogue, can be downloaded from the auctioneers internet site or is previously send to the potential buyer upon request.

Potential Buyers who bid via the telephone are obliged to bid at least the limit price and to previously provide a telephone number, where they can be contacted during the auction. 

Auctioneer hereby explicitly excludes the warranty for formation and maintaining the telephone connection as well as for possible other trouble with the telephone connection in fact particularly any warranty for the lack of acceptance of a bid. We refer to clause 10 paragraph 2 regarding the scope of this liability exclusion.

7. Acceptance of bid

Acceptance of bid is given to such potential buyer who offers the highest bid if no higher bid has been offered upon three consecutive calls of such highest bid.
If several persons offer the same bid and no higher bid is offered upon three consecutive calls of such bid, the acceptance of bid is allocated to one of the bidders by lot. Auctioneer is entitled to offer the item again, if a higher bid has been ignored by mistake.

8. Taking into possession/ invoice/ payment/ passing of risk

Acceptance of bid obliges to immediate taking into possession and payment. Buyers are obliged to pay within six calendar days upon acceptance of bid or issuing an invoice, whereupon the respective later date is essential. Payment at the auctioneers place is possible in cash, by EC-, Master- or Visacard or bank approved cheques. Payment which does not take place at the auctioneer’s premises are in general not possible by card. However there is the additional possibility of payment by bank transfer to the auctioneers bank account.

Buyer is in default without reminder after the above payment limit has elapsed.
With handing over of the auctioned item the risk of random destruction or deterioration of the item lays upon the buyer (passing of risk). If instead of handing over the item such item is send the provision in clause 15 applies. Passing of risk takes place, in the event that no prior handing over of the item took place, at the latest upon default.

If payment takes place in a foreign currency any possible currency losses and/or bank fees have to be paid by buyer.

Invoices issued during auction or immediately thereafter are issued with the caveat of review.

Export delivery is exempted from VAT, however, within the EU this applies only to businesses with VAT Identification number. Once proof of export and proof of acceptor are provided to auctioneer, the foreign buyer is entitled to reimbursement of VAT. Custom and VAT that accrue from import have to be born by the buyer in any event.

9. Retention of title

Property of the item is not transferred to buyer until full payment of all sums owed to auctioneer (retention of title). While retention of title is valid buyer is obliged to refrain from selling the item (item which is owned with reservation) or otherwise dispose of the property hereof.
Buyer is obliged to refer to the existing third party property if third parties, in particular bailiffs, try to get hold of the item which is owned with reservation and to notify auctioneer accordingly without delay in order to enable the enforcement of property rights.

10. Limited Liability

Claims for indemnity – irrespective of legal basis - against auctioneer including its representatives and auxiliary persons, which presume negligence, only exist, if a material contract obligation has been breached. In such event claims for indemnity are limited regarding its amount to the damages which are typically predictable.

Claims concerning damages of life, body and health as well as damages to property pursuant to the German product liability statute (Produkthaftungsgesetz), damages due to purpose or gross negligence as well as for guaranteed characteristic of state are not subject to the above limited liability.

If a buyer can proof within one year upon the auction that information regarding the auctioned item, which lessen its value or usability not insignificant or making it void, were wrong, then auctioneer is obliged to enforce its claim – as the case may be jurisdictional - against the person who issued the item to the auction. In the event where such claim is successful auctioneer reimburses the purchase price matching payment with physical delivery of the bought item in unchanged condition.

11. Commitment to bid

If acceptance of bid is made under condition, particularly because the highest bid is less than the limit, person who made such bid is bound by its bid for 30 days upon its acceptance. Acceptance of bid made under condition becomes unconditional upon confirmation by the auctioneer.

12. Commission/ surcharge

On top of the price for acceptance of bid a surcharge (commission) in the amount of 20% plus VAT in the amount of currently 19% has to be paid. Payment of the full amount has to be carried out in Euro and within the time limit set in clause 8 above. Bank fees, if any, have to be paid by buyer.

13. Resale Right

Buyer participates in the resale right fee pursuant to § 26 German Copyright Act in the amount of 2% of the acceptance of bid price. Items for which such fee is requested are marked with a small star in the title in the catalogue.

14. Default

In the event of payment default auctioneer is entitled to choose between fulfilment of purchase agreement or withdrawal from the agreement and request for damages caused by failure to fulfil the obligations from the initial agreement. Upon default interest upon the due amount has to be paid. Interest rate for consumers is 5 % points above the respective German basis interest rate and for the rest 8 % points above the respective German basis interest rate.

Further the item can be auctioned again at the expense of the person in default. The person in default is liable for any minor proceeds as opposed to the prior auction. He is not entitled to higher proceeds, if any.

Auctioneer is entitled to exclude him from any further auction.

15. Taking along/ shipping

In general purchased items can not be taken immediately. Notwithstanding that upon agreement the immediate taking away of small purchased items is possible, in particular objects stored in show cases and paintings. In general it is the Buyers obligation to pick up the purchased items. Upon request shipment of small objects up to a weight of 30 kg can be organised by auctioneer. For such service and for the packaging necessary for the shipment costs accrue, the amount of which can be checked at the auctioneers internet site under the flag “shipment” in a price list. For items that increase the above weight limit the auctioneer can name adequate shipping companies.

Shipment, if any, take place at the expense of the buyer. In the event that buyer does not act as consumer, risk of random destruction or deterioration of the item is passed to buyer upon handing over to such person who is in charge of shipment.

16. Publishing of results

Results will be published on the auctioneers internet site in general starting with the work day following the respective auction.

17. Post-auction sale

This auction terms and conditions apply to the free-hand sale after the end of the auction, so called post-auction-sale, respectively. Post-auction sale starts after the auction. Provisions for distance selling pursuant to §§ 312b-d German Civil Code (BGB) do not apply. Post-auction sale starts at the day following the respective auction in the premises of the auctioneer in Cologne and lasts 10 days in total.

18. Consequences of delayed pick up

If items that where bought in auction or during post-auction sale are not picked up within 10 days upon the end of the post-auction sale, then Buyer is obliged to pay fees for unrequested storage in the amount of

  • 10 € for small objects (particularly show-case objects and paintings)
  • 20 € for big objects (particularly furnishings),

whereupon he can previously ask whether a particular item is deemed small or big.

19. General provisions

Place of fulfilment and jurisdiction is Cologne if the buyer is merchant/business man or does not have a general jurisdiction in Germany or is a public legal entity or a public law special fund.

If one or several of the above provisions proof to be or become void this is without detriment to the remaining provisions.

German law applies. The provisions of CISG are excluded.

In the event that this auction terms and conditions are provided in several languages the German text prevails.