Strauss & co - 16 March 2015, Cape Town

306 Strauss and Company (Proprietary) Limited (‘Strauss & Co’) carries on business as fine art auctioneers and consultants. As auctioneers, Strauss & Co would usually act as agent of the seller of a lot or (in instances where Strauss & Co owns or has a financial interest in any lot) as principal.The contractual relationship of Strauss & Co with prospective buyers and sellers is governed by (i) the conditions set out below, (ii) any additional or special terms and conditions that Strauss & Co may impose (whether in the form of notices displayed at the premises at which any auction is conducted or announced by the auctioneer prior to or during any auction and whether in respect of any specific lot or in general), and (iii) such other terms and conditions as may be set out in any relevant catalogue (collectively the ‘general conditions of business’). 1 DEFINITIONS In these general conditions of business, headnotes are for convenience only and shall not be used in their interpretation, any expression which denotes any gender shall include the other genders, any expression which denotes the singular shall include the plural (and vice versa), any expression which denotes a natural person shall include a juristic person (and vice versa) and the following terms shall have the following meanings —  1.1  ‘auction’ means any private treaty or auction sale at which a lot is offered for sale by Strauss & Co;  1.2  ‘auctioneer’ means the representative of Strauss & Co conducting an auction;  1.3  ‘bidder’ means any person making, attempting or considering to make a bid or offer to buy a lot at an auction, including the buyer of that lot;  1.4  ‘buyer’ means the bidder who makes the bid or offer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot, and (where the buyer is an agent acting for a principal), the buyer and the buyer’s principal jointly and severally;  1.5  ‘buyer’s premium’ means the premium payable by the buyer of a lot to Strauss & Co on the sale of that lot, calculated on the hammer price of that lot at the relevant current rates;  1.6  ‘catalogue’ means any advertisement, brochure, estimate, price-list and other publication (in whatever medium, electronically or otherwise) published by Strauss & Co in respect of any auction;  1.7  ‘current rates’ means Strauss & Co’s current rates of commission, premiums and other amounts payable to Strauss & Co for the time being, together withVAT thereon (if any), all as published by Strauss & Co (whether in a catalogue or otherwise) or as agreed between a prospective buyer or seller (as the case may be) and Strauss & Co;  1.8  ‘forgery’ means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source, which is not shown to be such in the description Conditions of Business in the catalogue 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 that description and includes any misrepresentation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source;  1.9  ‘hammer price’ means the bid or offer made by the buyer for any lot that is finally accepted by the auctioneer (after determination by the auctioneer of any dispute that may exist in respect thereof) at a sale of that lot, together withVAT thereon (if any);  1.10  ‘lot’ means any item or items to be offered for sale by Strauss & Co at an auction;  1.11  ‘prime rate’ means the publicly quoted base rate of interest (percent, per annum compounded monthly in arrear and calculated on a 365 day year, irrespective of whether or not the year is a leap year) from time to time published by The Standard Bank of South Africa Limited, or its successor- in-title, as being its prime overdraft rate, as certified by any manager of such bank, whose appointment, authority and designation need not be proved;  1.12  ‘private treaty’ means the sale of any lot other than by auction sale at a price privately agreed on by the buyer and seller;  1.13  ‘purchase price’ means the hammer price of any lot at a sale thereof, plus the applicable buyer’s premium (plus VAT) for that lot, plus all recoverable expenses for which the buyer is liable in respect of that lot;  1.14  ‘recoverable expenses’ includes all fees, taxes (including VAT), charges and expenses incurred by Strauss & Co in relation to any lot that Strauss & Co is entitled to recover from a buyer or seller;  1.15  ‘reserve’ means the confidential minimum hammer price (if any) at which a lot may be sold at an auction as agreed between the seller of that lot and Strauss & Co in writing;  1.16  ‘sale proceeds’ means the amount due by Strauss & Co to the seller of a lot in respect of the sale of that lot, made up of the hammer price of the lot, less the applicable seller’s commission (plusVAT) for that lot, less all recoverable expenses for which the seller is liable in respect of that lot and any other amounts due to Strauss & Co by the seller in whatever capacity and howsoever arising;  1.17  ‘sale’ means the sale of any lot at an auction, whether done by private treaty or auction sale, and ‘sell’ and ‘sold’ shall have corresponding meanings;  1.18  ‘seller’ means the person named as the seller of any lot, being the person that offers the lot for sale;  1.19  ‘seller’s commission’ means the commission payable by the seller to Strauss & Co on the sale of a lot that is calculated on the hammer price of that lot at the relevant current rate; and  1.20  ‘VAT’ means value added tax levied in terms of theValue AddedTax Act, 1991. 2 CONDITIONS MAINLY CONCERNING BUYERS 2.1 The buyer    2.1.1 Any dispute of whatever nature about any bid or about the identity of the buyer (including without limitation any dispute about the validity of any bid, or whether a bid has been made, or any dispute between two or more bidders or between the auctioneer and one or more bidders) shall be determined at the auctioneer’s absolute discretion.    2.1.2 Every bidder shall be deemed to act as principal unless, prior to the commencement of any auction, Strauss & Co provides a written acknowledgement that a particular bidder is acting on behalf of a third party.    2.1.3 All bidders wishing to make bids or offers in respect of any lot must complete a registration form prior to that lot being offered for sale, which registration form will include an acknowledgement by the bidder that he is acquainted with and bound by these general conditions of business. Bidders shall be personally liable for their bids and offers made during any auction and shall be jointly and severally liable with their principals if acting as agent.    2.1.4 Bidders are advised to attend any auction at which a lot is to be sold by auction sale, but Strauss & Co will endeavour to execute absentee written bids and/or telephone bids, provided they are, in Strauss & Co’s absolute discretion, received in sufficient time and in legible form.When bids are placed by telephone before an auction they are accepted at the sender’s risk and must, if so requested by Strauss & Co, be confirmed in writing to Strauss & Co before commencement of the auction. Persons wishing to bid by telephone during the course of an auction must make proper arrangement with Strauss & Co in connection with such telephonic bids at least twenty hours before the commencement of the auction. As telephone bids cannot be entirely free from risk of communication breakdown, Strauss & Co will not be responsible for losses arising from missed bids.Telephone bidding may be recorded and all bidders consent to such recording. 2.2 Examination of lots    2.2.1 It is the responsibility of all prospective buyers to examine and satisfy themselves as to the condition of each lot prior to the auction, and that the lot matches any oral or written description provided by the seller and/or Strauss & Co. All illustrations of a lot in any catalogue are intended merely as guidance for bidders and do not provide definitive information as to colours, patterns or damage to any lot. Strauss & Co does not guarantee the working order of clocks and watches and cannot be held responsible for any losses which may be incurred.    2.2.2 Strauss & Co shall not be liable for any error, misstatement or omission in the description of a lot (whether in any