Strauss & co - 18 March 2019, Cape Town

226 Conditions of Business Strauss and Company Proprietary Limited (Registration No. 1972/000019/07) (‘Strauss & Co’) carries on business as fine art, decorative arts and jewellery 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 dis played 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’). Strauss & Co confirm that these general conditions comply with section 45 of the Consumer Protection Act 2008, and with the Regulations promulgated thereunder pertaining to auctions. 1 DEFINITIONS In these general conditions of business, headnotes are for convenience only and shall not be used in their interpretation, and unless the context clearly indicates a contrary intention, 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 ‘business day’’ means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa; 1.6 ‘buyer’s premium’ 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; 1.7 ‘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; 1.8 ‘current rates’ means Strauss & Co’s current rates of commission, premiums and other amounts payable to Strauss & Co for the time being, together with VAT 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; 1.9 ‘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 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, whether deliberate or otherwise, made with the intention of deceiving as to authorship, origin, date, age, period, culture or source; 1.10 ‘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); 1.11 ‘lot’ means any item or items to be offered for sale as a unit and identified as such by Strauss & Co at an auction. Each lot is, unless it is indicated to the contrary, regarded to be the subject of a separate transaction; 1.12 ‘parties’ means the buyer, seller and Strauss & Co; 1.13 ‘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 byThe 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; 1.14 ‘private treaty’ means the sale of any lot other than by auction sale at a price privately agreed on by the buyer and seller; 1.15 ‘purchase price’ means the hammer price of any lot at a sale thereof, plus the applicable buyer’s premium (plusVAT) for that lot, plus all recoverable expenses for which the buyer is liable in respect of that lot; 1.16 ‘recoverable expenses’ includes all fees, taxes (includingVAT), charges and expenses incurred by Strauss & Co in relation to any lot that Strauss & Co is entitled to recover from a buyer or seller; 1.17 ‘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; 1.18 ‘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; 1.19 ‘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; 1.20 ‘seller’ means the person named as the seller of any lot, being the person that offers the lot for sale; 1.21 ‘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 1.22 ‘VAT’ means value added tax levied in terms of the Value AddedTax Act, 1991 including any similar tax which may be imposed in place thereof from time to time. 2 CONDITIONS MAINLY CONCERNING BUYERS 2.1The 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 is provided with a written acknowledgement from a third party in respect of whom a particular bidder is acting as agent, which acknowledgement must (i) identify the third party principal, (ii) be accompanied by all relevant information and documentation referred to below in respect of that third party principal as if that third party principal were to register as a bidder, (iii) confirm that that particular bidder is acting on behalf of that third party principal, (iv) be signed by that third party principal, and (v) otherwise be in form and substance acceptable to Strauss & Co. 2.1.3 All bidders wishing to make bids or offers in respect of any lot must complete a bidder 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 The following information must accompany the bidder registration form: (i) for individuals: Photo identification (driver’s licence, national identity card, or passport) and, if not shown on the ID document, proof of current address (for example, a current utility bill or bank statement); (ii) for corporate clients: Certificate of Incorporation, Memorandum of Incorporation or equivalent document(s) showing the name and registered address together with documentary proof of directors and beneficial owners; and (iii) for trusts, partnerships, offshore companies and other business structures, please contact us in advance to discuss our requirements. Prospective bidders who have not previously registered with Strauss & Co are required to register at least twenty four hours before the auction commences, and pay a R5 000 holding deposit. 2.1.5 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 arrangements with Strauss & Co in connection with such telephonic bids at least twenty four 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. 2.1.6 If Strauss & Co agrees, as a convenience to a client, to execute a bid as a buyer, Strauss & Co will not be responsible for failing to execute the bid, or executing such bid strictly in accordance with the client’s instructions (including but not limited to computer-related errors). In doing so, Strauss & Co will endeavour to purchase the relevant lot for the lowest possible price, taking into account the reserve and other bids. If identical bids are left, Strauss & Co will give precedence to the first bid received. 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, condition 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. Strauss & Co cannot be held liable for any synthetic stones. 2.2.2 Strauss & Co shall not be liable for any error, misstatement or omission in the description of a lot (whether in any catalogue or otherwise), unless Strauss & Co, its employees or agents, are engaged in intentional misleading or deceptive conduct. 2.2.3 In bidding for any lot, all bidders confirm that they have not been induced to make any bid or offer by any representation of the seller or Strauss & Co. 2.3 Exclusions and limitations of liability to buyers 2.3.1 If a lot sold to a buyer proves to be a forgery (which will only be the case if an expert appointed by Strauss & Co for such purpose confirms same in writing), the buyer may (as his sole remedy hereunder or at law) return the lot to Strauss & Co within three hundred and sixty five days of the date of the sale of that lot in the same condition in which it was as at the date of sale, together with a written statement by the buyer detailing the defects to the lot, the date of the sale and the number of the lot. Should Strauss & Co be satisfied in its absolute discretion that the lot is a forgery and that the buyer is capable of transferring good and marketable title to the lot to a third party purchaser thereof, free from any encumbrances and other third party claims, the sale of that lot shall be set aside and the hammer price of that lot shall be refunded to the buyer, provided that the buyer shall have no rights against Strauss & Co (whether under these general conditions of business, at law or otherwise) if: 2.3.1.1 the only method of establishing that the lot was a forgery was by means of a scientific process not generally accepted for use until after publication of the catalogue in which that lot was identified for purposes of the auction at which it was sold, or by means of a process which was impracticable and/or unreasonably expensive and/or could have caused damage to the lot; 2.3.1.2 the description of the lot in the catalogue in which that lot was identified for purposes of the auction at which it was sold was in accordance with the then generally accepted opinion of scholars and experts or fairly indicated that there was conflict of such opinion; 2.3.1.3 a buyer’s claim (whether in contract, delict or otherwise) shall always be limited to an amount equal to the hammer price of the lot; 2.3.1.4 the benefits of this condition shall not be transferable by the buyer of any lot to a third party and shall always rest exclusively with the buyer. 2.3.2 Neither Strauss & Co nor the seller: 2.3.2.1 shall be liable for any omissions, errors or misrepresentations in any information (whether written or otherwise and whether provided in a catalogue or otherwise) provided to bidders, or for any acts omissions in connection with the conduct of any auction or for any matter relating