Strauss & co - 7 October 2019, Cape Town

277 bidding or offers for any lot in such increments as he considers appropriate. 2.5.2   The auctioneer shall be entitled to place consecutive bids on any lot on the seller’s behalf up to the reserve, where applicable.    2.5.3   The contract between the buyer and the seller of any lot shall be deemed to be concluded on the striking of the auctioneer’s gavel at the hammer price finally accepted by the auctioneer (which also usually includes the auctioneer noting the paddle number of the buyer) and after determination of any dispute that may exist.Where a lot remains unsold (usually where the auctioneer’s gavel is struck with a hammer price and without noting a paddle number) there is no such contract that is concluded. Strauss & Co is not a party to the contract of sale and shall not be liable for any breach of that contract by either the seller or the buyer.   2.5.4   The auctioneer, has the absolute discretion to accept or refuse bids from bidders that differ from the increments he was adhering to. 2.6 No cancellation or Returns No statutory“cooling off”period shall apply in respect of the sale of any lot. A buyer shall accordingly not be entitled to rescind any sale or request a refund of any payment pertaining thereto after his bid has been finally accepted by the auctioneer, save in the circumstances expressly provided for in these general conditions of business. 2.7 Payment and collection    2.7.1    A buyer’s premium, calculated at the applicable current rate of the hammer price, shall be payable by the buyer to Strauss & Co in respect of the sale of each lot. (For live auctions this buyer’s premium (excludingVAT) is 12% for lots selling over R10 000, and 15% for lots selling at or below R10 000.)The buyer acknowledges that Strauss & Co, when acting as agent for the seller of any lot, may also receive a seller’s commission and/or other fees for or in respect of that lot.    2.7.2    The buyer shall pay Strauss & Co the purchase price immediately after a lot is sold and shall provide Strauss & Co with details of his name and address and, if so requested, proof of identity and any other information that Strauss & Co may require.    2.7.3    Unless otherwise agreed in advance, the buyer shall make full payment of all amounts due by the buyer to Strauss & Co (including the purchase price of each lot bought by that buyer) on the date of sale (or on such other date as Strauss & Co and the buyer may agree upon in writing) in cash, electronic funds transfer, or such other payment method as Strauss & Co may be willing to accept. Any cheque and/ or credit card payments must be arranged with Strauss & Co prior to commencement of the auction. All credit card purchases are to be settled in full on the date of sale.    2.7.4    Ownership in a lot shall not pass to the buyer thereof until Strauss & Co has received settlement of the purchase price of that lot in full and in clear funds. Strauss & Co shall not be obliged to release a lot to the buyer prior to receipt in full payment thereof. However, should Strauss & Co agree to release a lot to the buyer prior to payment of the purchase price in full, ownership of such lot shall not pass to the buyer, nor shall the buyer’s obligations to pay the purchase price be impacted, until such receipt by Strauss & Co of the full purchase price in cleared funds.    2.7.5    The refusal of any approval, licence, consent, permit or clearance as required by law shall not affect the buyer’s obligation to pay for the lot.    2.7.6    Any payments made by a buyer to Strauss & Co may be applied by Strauss & Co towards any sums owing by the buyer to Strauss & Co on any account whatsoever and without regard to any directions of the buyer or his agent.The buyer shall be and remain responsible for any removal, storage, or other charges for any lot and must at his own expense ensure that the lot purchased is removed immediately after the auction but not until payment of the total amount due to Strauss & Co. All risk of loss or damage to the purchased lot shall be borne by the buyer from the moment when the buyer’s bid is accepted by Strauss & Co in the manner referred to above. Neither Strauss & Co nor its servants or agents shall accordingly be responsible for any loss or damage of any kind, whether caused by negligence or otherwise, from the date of the sale of the lot, whilst the lot is in their possession or control.    2.7.7    All packaging and handling of lots is at the buyer’s risk and expense, will have to be attended to by the buyer, and Strauss & Co shall not be liable for any acts or omissions of any packers or shippers.    2.7.8     If the sale of any lot is rescinded, set aside or cancelled by an action of the buyer, and Strauss & Co has accounted to the seller for the sale proceeds, the seller shall immediately refund the full sale proceeds to Strauss & Co, who will in turn refund the purchase price to the buyer. 2.8 Remedies for non payment or failure to collect Without prejudice to any rights that the seller may have, if any lot is not paid for in full or removed in accordance with the conditions of 2.7 above, or if there is any other breach of these general conditions of business by the buyer, Strauss & Co as agent of the seller shall, at its absolute discretion and without limiting any other rights or remedies that may be available to it or the seller hereunder or at law, be entitled to exercise one or more of the following remedies:    2.8.1    to remove, store (with a storage facility chosen at the sole discretion of Strauss & Co and at the cost and expense of the buyer) and insure the lot at its premises or elsewhere and at the buyer’s sole risk and expense;    2.8.2   to rescind the sale of that or any other lots sold to the buyer at the same or any other auction;    2.8.3    to set off any amounts owed to the buyer by Strauss & Co against any amounts owed to Strauss & Co by the buyer for the lot;    2.8.4    to reject future bids and offers on any lot from the buyer;    2.8.5    to proceed against the buyer for damages;    2.8.6    to resell the lot or cause it to be resold by public auction or private treaty, with estimates and reserves at Strauss & Co’s sole discretion, in which event the buyer shall be liable for any shortfall between the original purchase price and the amount received on the resale of the lot, including all expenses incurred by Strauss & Co and the seller in such resale;    2.8.7    to exercise a lien over any of the buyer’s property in Strauss & Co’s possession, applying their sale proceeds to any amounts owed by the buyer to Strauss & Co;    2.8.8    to retain that or any other lots sold to the buyer at the same time or at any other auction and to release such lots only after payment of the total amount due;    2.8.9    to disclose the buyer’s details to the seller to enable the seller to commence legal proceedings; 2.8.10  to commence legal proceedings; 2.8.11  to charge interest at a rate not exceeding the prime rate plus 3% per month on the total amount due to the extent that it remains unpaid after the date of the auction; 2.8.12  if the lot is paid for in full but remains uncollected after twenty eight days of the auction, following fourteen days written notice to the buyer, to resell the lot by auction or private treaty, with estimates and reserves at Strauss & Co’s sole discretion, or to store the lot , as contemplated in 2.8.1, pending resale.The sale proceeds of such lot if so resold, less all recoverable expenses, will be forfeited unless collected by the buyer within three months of the original auction. 3 CONDITIONS MAINLY CONCERNING SELLERS 3.1 Strauss & Co’s powers  3.1.1   The seller irrevocably instructs Strauss & Co to offer for sale at an auction all objects submitted for sale by the seller and received and accepted by Strauss & Co and to sell the same to the relevant buyer of the lot of which those objects form part, provided that the bid or offer accepted from that buyer is equal to or higher than the reserve (if any) on that lot (subject always to 3.1.3), all on the basis set out in these general conditions of business.The seller further irrevocably permits Strauss & Co to bid for any lot of which any of those objects form part as agent for one or more intending buyers.  3.1.2   Strauss & Co are authorised to retain any objects not sold on auction for a period of seven days after the auction for the possible sale of such objects by Strauss & Co by way of private treaty or otherwise pursuant to 3.1.3.  3.1.3   If any object submitted for sale by the seller and received and accepted by Strauss & Co in accordance with 3.1.1 was unsold on auction, and if Strauss & Co receives a bid or offer from a buyer, then Strauss & Co may proceed to sell same (taking into account the deduction of the applicable seller’s commission and recoverable expenses for which the seller is liable), whether by private treaty or otherwise, after contacting the seller and obtaining confirmation from the seller to do so.  3.1.4   Strauss & Co and the auctioneer each has the right, at his absolute discretion, to offer an object referred to above for sale under a lot, to refuse any bid or offer, to divide any lot, to combine two or more lots, to withdraw any lot from an auction, to determine the description of lots (whether in any catalogue or otherwise), to store accepted objects at the auction premises or any other location as he may deem fit and whether or not to seek the opinion of experts.  3.1.5   Strauss & Co shall not be under any obligation to disclose the name of the buyer to the seller, save for the circumstances contemplated elsewhere in these general conditions of business. 3.2 Estimated selling range and descriptions  3.2.1   Any estimated selling range provided by Strauss & Co to the seller is a mere statement of opinion and should not be relied upon as a true reflection of the hammer price which a lot may achieve at a sale. Strauss & Co reserves the right to revise the estimated selling range at any time.  3.2.2   The seller acknowledges that Strauss & Co is entitled to rely on the accuracy of the description of a lot as provided by or on behalf of the seller.  3.2.3   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, engaged in intentional misleading or deceptive conduct.  3.2.4   Where a seller insists on estimate or reserve that is higher than those provided by Strauss & Co specialists and not in line, in the opinion of Strauss & Co (in its absolute discretion), with market-related values, Strauss & Co reserves the right to charge a“bought-in”or“unsold fee”, in addition to the recovery of all expenses (including, but not limited to, photography, insurance and catalogue costs) incurred by Strauss & Co in respect of such lot. 3.3Warranties of the seller  3.3.1   The seller warrants to Strauss & Co and to the buyer that: 3.3.1.1  he is the true owner of all objects submitted for sale and/or is properly authorised by the true owner to do so, and that he is able to transfer good and marketable title to all such objects, free from any encumbrances and other third party claims, to the buyer of the lot of which those objects form part; 3.3.1.2  he has complied with all requirements, legal or otherwise, in relation to any export or import of the lot, if applicable, and has notified Strauss & Co in writing of any failure by third parties to comply with such requirements in the past; 3.3.1.3  the lot and any written provenance given by the seller are authentic; 3.3.1.4 the lot is fit for its purpose and safe if used for the purpose for which it was designed and is free from any defect not obvious on external inspection; 3.3.1.5  to the extent that the seller required any approval, licence, consent, permit or clearance by law to be in possession of any lot or for the sale of any lot, he is in possession of a valid approval, licence, consent, permit and clearance.  3.3.2   Notwithstanding any other provision of these general conditions of business, none of the seller, Strauss & Co, its servants or agents is responsible for errors of description or for the authenticity of any lot, and no warranty whatever is given by Strauss & Co, its servants or agents, or any seller to any buyer in respect of any lot (save insofar as the seller is concerned as set out in 3.3.1), and all express or implied conditions or warranties are hereby excluded.  3.3.3    The seller of any object forming part of a lot not to the sale of any lot, including when caused by the negligence of the seller, Strauss & Co, their respective employees and/ or agents; 2.3.2.2 gives any guarantee or warranty to bidders other than those expressly set out in these general conditions of business (if any) and any implied conditions, guarantees and warranties are excluded.    2.3.3    Without prejudice to any other provision of these general conditions of business, any claim against Strauss & Co and/or the seller of a lot by a bidder shall be limited to the hammer price of the relevant lot. Neither Strauss & Co nor the seller shall be liable for any indirect or consequential losses.    2.3.4    A purchased lot shall be at the buyer’s risk in all respects from the fall of the auctioneer’s gavel, whether or not payment has been made, and neither Strauss & Co nor the seller shall thereafter be liable for, and the buyer indemnifies Strauss & Co against, any loss or damage of any kind, including when caused by the negligence of Strauss & Co and/or its employees or agents.    2.3.5   All buyers are advised to arrange for their own insurance cover for purchased lots effective from the day after the date of sale for purposes of protecting their interests as Strauss & Co cannot warrant that the seller has insured its interests in the lot or that Strauss & Co’s insurance cover will extend to all risks.    2.3.6   Strauss & Co does not accept any responsibility for lots damaged by insect infestation, changes in atmospheric conditions or other conditions outside its control, and shall not be liable for damage to glass or picture frames. 2.4 Import, export and copyright restrictions   Save as expressly set out in 3.3, Strauss & Co and the seller make no representation or warranties as to whether any lot is subject to export, import or copyright restrictions. It is the buyer’s sole responsibility to obtain all approvals, licences, consents, permits and clearances that may be or become required by law for the sale and delivery of any lot to the buyer.The denial of any permit or licence shall not justify cancellation or recession of the sale contract or delay in payment.    2.4.1 Property incorporating materials from endangered and other protected species: Property made of or incorporating (irrespective of percentage) materials from endangered and other protected species of wildlife are marked with the symbol * in the lot description. All are identified in the lot description with language indicating (as such). Prospective purchasers are advised that several countries prohibit altogether the i mportation of property containing certain materials, and that other countries require a permit (e.g. a CITES permit) from the relevant regulatory agencies in the countries of exportation as well as importation. Buyers should always check whether an export licence is required before exporting. It is the buyer’s sole responsibility to obtain any relevant export or import licence. Strauss & Co cannot ensure that a licence will be obtained and are not responsible for any costs incurred in either securing or denial of any permits required for export or import licence.The inability of a client to export or import property containing endangered and other protected wildlife material is not a basis for cancellation or recession of the sale. Lots containing potentially regulated wildlife material are marked as a convenience to our clients but Strauss & Co does not accept liability for errors or for failing to mark lots containing protected or regulated species. 2.5 Conduct of the auction    2.5.1  The auctioneer has the absolute discretion to withdraw or reoffer lots for sale, to accept and refuse bids and/or to reopen the bidding on any lots should he believe there may be a dispute of whatever nature (including without limitation a dispute about the validity of any bid, or whether a bid has been made, and whether between two or more bidders or between the auctioneer and any one or more bidders) or error of whatever nature, and may further take such other action as he in his absolute discretion deems necessary or appropriate. The auctioneer shall commence and advance the