The conditions set out below are the terms on which we contract, as auctioneers, with sellers and, as agent acting on behalf of sellers, with buyers. Buyers and sellers should read the conditions carefully. Buyers’ attention is drawn in particular to clause 16 which limits our liability. For ease of reference, the conditions are divided into sections: Section A gives a background to some of the terms that are used in the Conditions generally; Section B is of particular relevance to sellers; Section C to buyers; and Section D to both sellers and buyers.
1. In the conditions set out below, some terms are used regularly that need explanation.
They are as follows:
“the Buyer” means the person with the highest bid accepted by the auctioneer;
“the Lot” means any item deposited with us for sale at auction and, in particular, the item or items described against any lot number in any catalogue;
“the Hammer Price” means the amount of the highest bid accepted by the auctioneer in relation to a Lot;
”the Buyer’s premium” means the charge payable by the Buyer as a percentage of the Hammer Price, at the rates set out in clause 15(a) in Section C;
”the Reserve” means the amount below which we agree with the Seller that the Lot cannot be sold;
“Forgery” means a Lot constituting an imitation originally conceived and executed as a whole with a fraudulent intention to deceive as to authorship, origin, age, period, culture or source where the correct description as to such matters is not reflected by the description in the catalogue and which at the date of the auction had a value materially less than it would have had if it had been in accordance with the description in the catalogue. Accordingly, no Lot shall be capable of being a Forgery by reason of any damage and/or restoration work of any kind.
“The Insured Value” means the amount that Brompton’s Auctioneers Limited in its absolute discretion from time to time shall consider to be the value for which a Lot should be covered by insurance (whether or not insurance is arranged by us).
2. Brompton’s Auctioneers Limited’s Role as Agent.
Our sales at public auction are undertaken as agent, on behalf of the Seller. The contract for the sale of the Lot will be between the Seller and the Buyer.
We shall charge the Seller commission at a rate agreed between the Seller and Brompton’s Auctioneers Limited. VAT at the appropriate rate will be charged on the commission. We shall also collect from the Buyer a premium in addition to the Hammer Price, VAT at the appropriate rate is also charged on this premium.
Bromptons will charge the Seller for all its out of pocket expenditure over and above its agreed fee, in particular:
(a) all costs of Packing and shipping the Lot to us for sale;
(b) all applicable transit insurance costs;
(c) all costs relating to packing and shipping the lot if it is returned to the Seller;
(d) all applicable customs duties;
(e) all restoration of the Lot agreed in advance with the Seller
(f) all examination costs incurred by external experts we believe appropriate, if agreed in advance with the Seller
(g) photography charges of £35 per lot advertised online, and where previously agreed charges for the catalogue photography.
(h) all Storage costs of the lot after the sale;
(i) all applicable VAT.
Bromptons will on request provide advance estimates of such expenditure and the Seller is directed to www.bromptons.co where applicable rates for the more routine of these expenses are posted from time to time. The Seller is aware that Bromptons will not have control of the level of such third party charging and the Seller is advised, if concerned, to make his/its own direct advance enquiries of, for example relevant insurance, customs and vat authorities.
5a. Where the Lot is included under Brompton’s Auctioneers Limited’s Policy
(a) Unless we agree otherwise, the Lot will be automatically included as consigned or entrusted goods under Brompton’s Auctioneers Limited’s Fine Art Policy for the
amount that we from time to time consider to be its appropriate value. This Value is not an undertaking by us that the Lot will be sold for this amount.
(b) We shall charge the Seller a fee for the inclusion of the Lot under our policy at the rate of 1.5% of the Hammer Price. If we arrange transport, we may charge the Seller an additional fee based on the value of the Lot and the particular circumstances of the requirements for the transport to maintain the benefit of the inclusion of the Lot under Brompton’s Auctioneers Limited’s policy during such transport. Although we shall suggest carriers if specifically requested, we cannot accept any liability in this respect.
(c) The Lot will retain the benefit of inclusion under Brompton’s Auctioneers Limited’s policy until the expiry of seven days after the sale. If the Lot has not been sold, it will be at the Seller’s risk after that time.
(d) We are unable to accept responsibility for damage caused by woodworm, changes in atmospheric conditions or acts of terrorism.
5b. Owner’s Insurance
If the Seller specifically instructs us not to insure the Lot, it will remain at the Seller’s risk at all times until the Buyer has made payment in full. The Seller will indemnify us and our employees and agents, and the Buyer (where applicable) against any claim made against us or them in respect of the Lot, however that claim may arise. The Seller will also reimburse us and them on demand for any expenses we or they may incur as a result of such a claim, even if we or they are found to have been negligent and even where such reimbursement is required of a payment made without any legal liability being proved. The Seller must notify the Seller’s insurers of the terms of this clause.
6. The Seller’s Undertakings regarding the Lot
This clause sets out the basis on which we shall handle the Lot and which will govern the Seller’s relationship with the Buyer. If that basis proves incorrect in any way, either we or the Buyer may take legal action against the Seller.
We shall handle the Lot, and the Buyer will purchase, on the basis of the Seller’s undertakings that:
(a) the Seller is the sole owner of the Lot with an unrestricted right to transfer title to the Buyer free from all third party rights or claims (including copyright claims);
(b) the Seller has complied with all requirements, legal or otherwise relating to any export or import of the Lot and has notified us in writing of any failure by third parties to comply with such requirements in the past; and
(c) the Seller has notified us in writing of any material alterations to the Lot of which the Seller is aware and of any concerns expressed by third parties in relation to the ownership, condition or attribution of the Lot. If any of (a), (b) and (c) above is incorrect, the Seller will indemnify us and/or the Buyer in full on demand against all claims, costs or expenses incurred by us or the Buyer as a result, whether arising in relation to the Lot or the proceeds of sale.
7. Sale Arrangements
(a) We shall have complete discretion as to the way the Lot is described and illustrated in the catalogue or any condition report; the place and manner of sale; the decision as to which persons should be admitted to the auction, and as to which bids should be accepted; whether expert advice should be sought, and the combination or division of goods for sale.
(b) Any estimate given, orally or in writing, is a matter of opinion only and is not an assurance in relation to the price the Lot will eventually fetch.
(c) The Seller may not withdraw the Lot from sale without our consent. However, we reserve the right to withdraw the Lot from sale at any time if (i) we have any doubt as to its attribution or authenticity or as to the accuracy of the statements made in clause 6 (a), (b) or (c) above or (ii) there is any breach of these Conditions of Business or (iii) we believe it would be improper to include the Lot in the sale.
(d) If either we or the Seller withdraw the Lot, we shall charge the Seller a fee equal to 20% of the Reserve or, if no Reserve has been agreed at that time, 20% of the Insured Value, together with any applicable VAT and insurance and other expenses.
8. Conduct of Sale
(a) The Lot will be sold subject to the Reserve, which cannot be above the low estimate printed in the catalogue unless the Reserve is agreed to in a currency other than pounds sterling and the exchange rates fluctuate between the time the Reserve is agreed and the day of the sale. In this case, unless we agree otherwise, the Reserve shall be an amount equal to the pound sterling equivalent based on the closing exchange rate on the business day immediately preceding the sale. We shall in no circumstances be liable if bids are not received at the level of the Reserve. We shall however be entitled to sell the Lot below the Reserve. If we do so, we shall be obliged to account to the Seller as if the Hammer Price was equal to the Reserve.
(b) The Seller may not bid for the Lot nor employ any person to do so on the Seller’s behalf, although we shall have the right to bid on the Seller’s behalf up to the amount of the Reserve.
9. After the Sale
After the sale, we shall require payment in full from the Buyer, including payment of the Buyer’s premium within seven days. Provided this has occurred, we shall remit to the Seller an amount equal to the Hammer Price less all charges due from the Seller, 35 days after the date of the sale, unless we have received notice that the Lot is a Forgery (as defined in Section A of these Conditions of Business). In the event of late payment by the Buyer we shall make such remittance to the Seller within seven days of that payment by the Buyer. If for any reason we make payment to the Seller of the amount due before payment by the Buyer, we shall acquire complete ownership of and title in the Lot, save only that in the event that we are obliged to accept the Lot back from the Buyer on the basis that it is a Forgery, the Seller will refund to us the proceeds of sale paid to the Seller.
Payment will be made in sterling unless the Seller instructs otherwise in writing. If the Seller requires payment other than in sterling, we shall charge the Seller for any currency costs incurred. Sale proceeds will be calculated at the rate of exchange quoted to us by Coutts & Co. prevailing on the day of the pay-out 35 days after the date of the auction. Our certificate as to such rate will be conclusive.
(b) Non-Payment by the Buyer
If the Buyer fails to pay the full amount due within 35 days after the date of sale, we shall be entitled to agree special terms on the Seller’s behalf for payment, storage and insurance, and to take any steps we consider necessary to collect the amount due from the Buyer. However, we shall not be obliged either to remit the price due to the Seller ourselves, nor to take any legal proceedings on the Seller’s behalf. We shall discuss with the Seller the appropriate course of action to be taken to recover the purchase price from the Buyer.
If within three months of the date of the auction the Buyer satisfies us that the Lot is a Forgery (as defined in Clause 1 of these Conditions of Business), then (i) if the Buyer at that time has not yet paid the full amount due, we shall have the right to cancel the sale and/or (ii) if we have at that time paid the Seller the whole or part of the full amount due to the Seller, then the Seller must refund to us, on demand, the total amount paid. In the latter case we shall exercise a lien over any property of the Seller under our control as security for the amount due.
(d) Unsold Lot
If any Lot is unsold, or is not included in a sale, or is withdrawn from sale for any reason, it must be collected from us within 35 days after we send the Seller a notice requiring the Seller to collect it. If any such Lot remains uncollected for a period exceeding 35 days, a storage charge of £1 per item per day will apply and an additional charge will be made for insurance. The Seller will not be entitled to collect the Lot until all outstanding charges are met.
If any such Lot is not collected within 90 days after the date of the sale or the date of the notice referred to above (whichever occurs first), it may be disposed of by us as we see fit, which may involve its removal to a third party warehouse at the Seller’s expense and its sale by public auction on such terms as we consider appropriate, including those relating to estimates and reserves. We shall then account to the Seller for the proceeds of sale, having deducted all amounts due.
If any Lot is bought in or otherwise unsold by auction, we are authorised as the exclusive agent for the Seller for a period of two months following the auction to sell such Lot privately for a price that will result in a payment to the Seller of not less than the net amount – i.e. after deduction of all charges due from the Seller – to which the Seller would have been entitled had the Lot been sold at a price equal to the Reserve, or for such lesser amount as we and the Seller shall agree. In such event the Seller’s obligations to us with respect to such a Lot are the same as if it had been sold at auction.
10. Photographs and Illustrations
We shall have the right (on a non-exclusive basis) to photograph, video or otherwise produce an image of the Lot. All rights in such an image will belong to us, and we shall have the right to use it in whatever way we see fit.
11. Other Matters
The Seller will give all relevant information about his VAT status and that of the Lot to ensure that the correct information is printed in the catalogues. Once printed, the information cannot be changed. If we incur any unforeseen cost or expense as a result of the information being incorrect, the Seller will reimburse to us on demand the full amount incurred.
12. Brompton’s Auctioneers Limited as agent
As auctioneers, we act as agent for the Seller. Unless otherwise agreed sales of goods at our auctions result in contracts made between the Seller, through our agency, with the Buyer.
13. Before the Sale
(a) Examination of goods
Prospective buyers are strongly advised to examine personally any goods in which they are interested, before the auction takes place. Condition reports are usually available on request. We provide no guarantee to the Buyer other than in relation to Forgeries, as explained in clause 1 of these Conditions of Business.
(b) Catalogue descriptions
Statements by us in the catalogue or condition report, or made orally or in writing elsewhere, regarding the authorship, origin, date, age, size, medium, attribution, genuineness, provenance, condition or estimated selling price of any Lot are merely statements of opinion, and are not to be relied on as statements of definitive fact. Catalogue illustrations are for guidance only, and should not be relied on either to determine the tone or colour of any item or to reveal imperfections. Estimates of the selling price should not be relied on as a statement that this price is either the price at which the Lot will sell or its value for any other purpose.
Many items are of an age or nature which precludes their being in perfect condition and some descriptions in the catalogue or given by way of condition report make reference to damage and/or restoration. We provide this information for guidance only and the absence of such a reference does not imply that an item is free from defects or restoration nor does a reference to particular defects imply the absence of any others.
(c) Buyers Responsibility
Buyers are responsible for satisfying themselves concerning the condition of the goods and the matters referred to in the catalogue description. All lots are offered for sale in the condition they are in at the time of the auction (whether or not Bidders are in attendance at the auction).
(d) Importation into a buyer’s destination country
The purchaser’s inability to import any item into his destination country as a result of Government economic sanctions or other restrictions shall not justify cancellation or rescission of the sale or any delay in payment. Please satisfy yourself before bidding as to whether a lot is subject to such import restrictions, or any other restrictions on importation or exportation.
14. At the Sale
(a) Refusal of admission
Our sales take place on our own premises or premises over which we have control for the sale, and we have the right, exercisable at our complete discretion, to refuse admission to the premises or attendance at an auction.
(b) Registration before bidding
Every prospective buyer must complete and sign a registration form and provide identification before making a bid at auction. Prospective buyers should be aware that we usually require buyers to undergo a credit check.
(c) Bidding as Principal
When making a bid, prospective buyers will be accepting personal liability, unless it has been agreed in writing, at the time of registration, that a bidder is acting as agent on behalf of a third party acceptable to us.
(d) Absentee Bids
If a prospective buyer gives us instructions to bid on his behalf, by using the form provided, we shall use reasonable efforts to do so, provided these instructions are received not later than 24 hours before the sale. If we receive absentee bids on a particular Lot for identical amounts, and at auction these bids are the highest bids for the Lot, it will be sold to the person whose bid was received first. Absentee bids are undertaken subject to other commitments at the time of the sale, and the conduct of the sale may be such that we are unable to bid as requested. Since this is undertaken as a free service to prospective buyers on the terms stated, we cannot accept liability for failure to make an absentee bid. Prospective buyers should therefore always attend personally if they wish to be certain of bidding.
(e) Telephone Bids
If prospective buyers make arrangements with us not less than 24 hours before the sale, we shall use reasonable efforts to contact the bidders to enable them to participate in bidding by telephone, but in no circumstances will we be liable to either the Seller or any prospective buyer as a result of failure to do so.
(f) Currency Converter
At some auctions, a currency converter will be operated, based on the rates of exchange quoted to us by Coutts & Co. at opening on the date of the auction. Bidding will however take place in sterling. The currency converter is not always reliable, and errors may occur beyond our control either in the accuracy of the Lot number displayed on the converter, or the foreign currency equivalent of sterling bids. We shall not be liable to the Buyer for any loss suffered as a result of the Buyer following the currency converter rather than the sterling bidding.
(g) Video images
At some auctions there will be a video screen. Mistakes may occur in its operation, and we cannot be liable to the Buyer regarding either the correspondence of the image to the Lot being sold or the quality of the image as a reproduction of the original.
(h) The auctioneer’s discretion
The auctioneer has the right at his absolute discretion to refuse any bid to advance the bidding in such manner as he may decide to withdraw or divide any Lot, to combine any two or more Lots, to withdraw any lot, and, in the case of error or dispute, to put an item up for bidding again. All aforementioned action can also be taken after the fall of the hammer.
(i) Bidding Increments
The auctioneer will commence and advance the bidding at levels and in increments he considers appropriate and is entitled to place a bid or series of bids on behalf of the Seller up to the Reserve on the lot, without indicating he is doing so and whether or not other bids are placed.
(j) Successful bid
Subject to the auctioneer’s discretion, the striking of his hammer marks the acceptance of the highest bid and the conclusion of a contract for sale between the Seller and the Buyer.
(k) Online Bidding
Brompton’s Auctioneers offer an online bidding service. In completing the online bidder registration and providing your credit card details and unless alternative arrangements are agreed with Brompton’s Auctioneers you:
i. authorise Brompton’s 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, and
ii. confirm that you are authorised to provide these credit card details to Brompton’s Auctioneers.
15. After the Sale
(a) Buyer’s Premium
In addition to the Hammer Price, the Buyer must pay us the Buyer’s premium at a rate of 20% of the Hammer Price.
(b) Value Added Tax
Value Added Tax is always payable on the premium. It may also be payable on the Hammer Price, if the Lot has been marked with a sign to that effect in the catalogue. It may be refunded on proof of export from the UK.
The Buyer must provide us with his or her name and permanent address and, if so requested, details of the bank from which payment will be made and then pay the full amount due (comprising the Hammer Price, the Buyer’s premium and any applicable value added tax) within seven days after the date of the sale. This applies even if the Buyer wishes to export the lot and an export licence is (or may be) required. The Buyer will not acquire title to the Lot until all amounts due to us have been paid to us, even in circumstances where we have released the Lot to the Buyer.
Payment may be made in the following ways: by credit or debit card (Visa and Mastercard are accepted); wire transfer in GBP; or by GBP in cash up to £5,000. Please note credit card payments with no additional charges will only be accepted for one full working day following the date of the auction and at a maximum single transaction of £5,000 per invoice.
Brompton’s Auctioneers Limited is not able to notify successful bidders by telephone.
While Invoices are sent out by email after the auction we do not accept responsibility for notifying you of the result of your bid. Buyers are requested to contact us by telephone or in person as soon as possible after the sale to obtain details of the outcome of their bids to avoid incurring unnecessary charges. Successful bidders will pay the price of the final bid plus premium plus any applicable VAT.
(d) Collection of Purchases
Unless we specifically agree to the contrary, we shall retain items sold until all amounts due to us, or to any other associated company of Brompton’s Auctioneers Limited, have been paid in full. Items retained will be covered by our insurance from the date of sale for a period of seven days or, if by then the goods have been collected, to the time of collection. After seven days or from the time of collection, whichever is the earlier, the Lot will be entirely at the Buyer’s risk.
Invoices are sent out by email after the sale day, but we do not accept responsibility for notifying you of your bid. Bidders are requested to contact us as soon as possible after the sale to check if they were successful, and to avoid incurring charges for late payment.
(f) Handling Purchases
We shall use all reasonable efforts to take care when handling and packing a purchased Lot but remind the Buyer that after seven days or from the time of collection the Lot is entirely at the Buyer’s risk.
(g) Recommended packers and shippers
All packing and handling is at the Buyer’s risk. Brompton’s Auctioneers Ltd will not be liable for any acts or omissions of third party packers or shippers. We recommend that you contact a professional shipping company who will advise on collection and delivery and provide a quotation. If you require a quotation after the auction then you will need to provide the shipping company with the information from your Brompton’s invoice. All shipments should be unpacked and checked on delivery and any discrepancies notified immediately to the shipper in question.
(h) Remedies for non-payment or failure to collect purchases
If the Buyer fails to make payment within seven days, we shall be entitled to exercise one or more of the following rights or remedies:
(i) Failure to collect
Where purchases are not collected within seven days after the sale, whether or not payment has been made, we shall arrange storage at the Buyer’s expense, and only release the items purchased after payment has been made in full of storage, removal, insurance and any other costs incurred, together with payment of all other amounts due to us.
(j) Export and Permits
It is the Buyer’s sole responsibility to identify, obtain, and purchase any necessary export, import, endangered species or other permit for the lot. If the Buyer requests us to apply for a licence listed below on his behalf, we shall be entitled to recover from him our disbursements and out of pocket expenses in relation to such application, together with any relevant VAT. We will not be obliged to refund any interest or other expenses incurred by the Buyer where payment is made by the Buyer despite the fact that an export licence is required. Unless otherwise agreed by us in writing, the fact that the Buyer wishes to apply for an export licence does not affect his obligation to make payment within seven days nor our right to charge interest on late payment.
16. Extent of Our Liability
(a) We have an obligation to refund the Buyer in the circumstances set out in clause 17. However, neither the Seller nor we, nor any of our employees or agents, are responsible for the correctness of any statement as to the authorship, origin, date, age, attribution, genuineness or provenance of any Lot nor for any other errors of description or for any faults or defects in any Lot. Neither the Seller, ourselves, our employees or agents, give any guarantee in respect of any Lot. Any warranty of any kind whatsoever is excluded by this clause.
(b) Without prejudice to Condition 16(a), any claim against Brompton’s Auctioneers Ltd or the Seller by a Bidder is limited to the Purchase Price with regard to that lot. Neither Brompton’s Auctioneers Ltd nor the Seller shall under any circumstances be liable for any consequential losses.
17. Refund in the case of Forgery
A sale will be cancelled, and the amount paid refunded to the Buyer if a Lot (other than a miscellaneous item not described in the catalogue) sold by us proves to have been a Forgery. We shall not however be obliged to refund any amounts if either (a) the catalogue description or saleroom notice at the auction date corresponded to the generally accepted opinion of scholars or experts at that time, or fairly indicated that there was a conflict of opinions, or (b) it can be demonstrated that the Lot is a Forgery only by means of either a scientific process not generally accepted for use until after publication of the catalogue or a process which at the date of the auction was unreasonably expensive or impracticable or likely to have caused damage to the Lot.
Furthermore, the Buyer should note that this refund can be obtained only if the following conditions are met:
(i) the Buyer must notify us in writing, within three months of the auction date, that in his view the Lot concerned is a forgery;
(ii) the Buyer must then return the item to us within fourteen days, in the same condition as at the auction date; and
(iii) as soon as possible following return of the Lot, the Buyer must produce evidence satisfactory to us that the Lot is a Forgery and that he is able to transfer good title to us, free from any third party claims.
In no circumstances shall we be required to pay the Buyer any more than the amount paid by him for the Lot concerned and the Buyer shall have no claim for interest.
The benefit of this guarantee is not capable of being transferred, and is solely for the benefit of the person to whom the original invoice was made out by us in respect of the Lot when sold and who, since the sale, has remained the owner of the Lot without disposing of any interest in it to any third party.
We shall be entitled to rely on any scientific or other process to establish that the Lot is not a Forgery, whether or not such process was used or in use at the date of the auction.
The copyright in all images, illustrations and written material relating to a Lot is and shall remain at all times our property and shall not be used by the Buyer nor anyone else without our prior written consent. Where the vendor provides the text, photographs and illustrations for publication the vendor warrants that use is authorised by the copyright owner and indemnifies the Company against claims and costs arising from wrongful use.
Any notice given under these Conditions is to be in writing and, if given by post, will be taken to have been received by the addressee on the second working day after posting or, if the addressee is overseas, on the fifth working day after posting.
If any part of these Conditions of Business is found by any court to be invalid, illegal or unenforceable, that part may be discounted and the rest of the conditions shall continue to be valid and enforceable to the fullest extent permitted by law.
21. Law and Jurisdiction
These Conditions of Business are subject to English law, which shall apply to their construction as well as to their effect. For our benefit, the Seller and the Buyer submit to the exclusive jurisdiction of the English courts.
22. Data Protection
In connection with the management and operation of our business and the marketing and supply of services, or as required by law, we may ask clients to provide personal information about themselves or obtain information about clients from third parties (e.g., credit information). If clients provide Brompton’s Auctioneers Ltd with information that is defined by law as “sensitive”, they agree that we may use it for the above purposes. Brompton’s Auctioneers Ltd will not use or process sensitive information for any other purpose without the client’s express consent. If you would like further information, would like to make corrections to your information or would prefer not to receive details of future events, please contact us: +44(0)20 7670 2932 / firstname.lastname@example.org In order to fulfil the services clients have requested, Brompton’s Auctioneers Ltd may disclose information to third parties (e.g., shippers). Some countries do not offer equivalent legal protection of personal information to that offered within the UK. It is our policy to require that any such third parties respect the privacy and confidentiality of our clients’ information and provide the same level of protection for clients’ information as provided within the UK, whether or not they are located in a country that offers equivalent legal protection of personal information. By agreeing to these Conditions of Business, clients agree to such disclosure. Clients will please note that for security purposes, our premises and auction venues, may be subject to video recording. Telephone calls e.g., telephone and voicemail messages may also be recorded.