Terms and Conditions
This translation of the Dutch Terms and Conditions are provided as a courtesy. In the event of a conflict or inconsistency between the Dutch text and any translation of these terms and conditions, only the Dutch Terms and Conditions are legally binding.
These Terms and Conditions apply to all auctions held by Fischer’s Auction (hereinafter referred to as: ‘FA’), a subsidiary of Simonis & Buunk Collectie B.V. (hereinafter referred to as: ‘S&B’), according to the so-called second-price sealed-bid Vickrey auction mechanism. Participation in an auction by bidding implies knowledge and acceptance of these terms and conditions. Participants are informed that these Terms and Conditions apply on the bidding form, on the website www.fischersauction.com and at the viewing days in Fischer’s House, Notaris Fischerstraat 27, 6711 BB Ede, unless impossible: in that case bidders are referred to the depot number 09099309 of the Kamer van Koophandel in Arnhem. Furthermore, the Terms and Conditions will be sent upon request.
In these terms and conditions:
- viewing days mean the period of time in which the lots are exhibited for examination;
- auction means the selling and processing according to the Vickrey auction method in Fischer’s House or in the adjacent building on Notaris Fischerstraat 30;
- lot means the item or set of items of movable property sold by auction under one number;
- bid means the price offered by a bidder for a lot offered for sale at the auction excluding the buyer’s premium;
- bidder means anyone submitting at least one bid at the auction;
- bidding means to sign a completed bidding form and submit it together with an attached copy of a valid government-issued ID, as described on the bid form and on the website;
- buyer means the bidder to whom a lot is allocated;
- allocation means the statement by the notary that the bidder with the highest bid for a lot is accepted as the buyer of that lot. As a consequence, a contract of sale and purchase agreement is established between FA and the buyer, as stated in art. II:7;
- hammer price means the bid for which the lot according to h) is allocated by the notary to the buyer;
- reserve price means the minimum amount, below which one cannot be submit a valid bid, indicated by ‘starting bid’ in the catalogue. If only one valid bid has been submitted, the reserve price acts as the second-highest bid;
- buyer’s premium means the premium of 10% over the hammer price including VAT and resale right (where appropriate, any resale royalty or import-VAT is settled with the consigner);
- purchase price means the price the buyer has to pay, or the hammer price increased with the buyer’s premium. The purchase price includes VAT and, if applicable, resale right (driot de suite). The purchase price is predominantly billed according to the VAT-margin scheme;
- secondary auction means a new auction conform the first auction, but now only between the highest bidders with equal highest bids, led by the notary according to art. II:7.
Art. I – General statements
- The bidder is required to attach with his bid a copy of his valid government-issued ID.
- Every bid that is submitted to the notary is unconditional and irrevocable. If a bidder bids more than once on the same lot, only the highest bid counts and the others are invalidated.
- Anyone submitting a bid at an auction is deemed to be a bidder, even if the individual in question declares that he has not made a bid on his own behalf.
- If a buyer has submitted a bid on behalf and at the expense and risk of one or more third parties, such third parties and the buyer are jointly and severally liable for the fulfillment of the obligations incumbent upon the buyer under these auction terms and conditions.
- FA grants the notary all rights concerning the regulation of the bidding procedure. The judgment of the notary regarding any detail of the auction processing and the explanation or application of the Terms and Conditions during the auction is – by binding advice – decisive. The bidder must be available if the notary has any questions.
- The notary has the right to refuse a bid without a specified reason and to continue the bidding process. A bid without proper identification or an unclear bid may be declared invalid by the notary.
- FA reserves the right to withdraw one or more lots, and to furnish additional or different information on the lots at the auction. This will be published on the website at the latest five days before the last viewing day. It is recommended to consult the website of FA in these days.
Art. II – Auction and allocation
- The main rule of FA is: the bidder with the highest bid buys the lot for a hammer price equal to the second-highest bid, with a minimum of the reserve price, plus 10% buyer’s premium.
- Bidding is in all cases written and is possible starting the publication of the catalogue until the gavel for a particular lot has fallen, with which the lot is allocated and the hammer price announced.
- Bidding per letter, email or fax is possible until a clearly communicated deadline on the day of the auction, mentioned in the catalogue and on the website. After that time, the notary reserves the right to refuse bids per letter, email or fax. If the notary receives a bid after that deadline that is fully completed and of which the processing does not cause hindrance, the notary is encouraged to include the bid in the auction.
- Bidding is furthermore possible live during the auction in Fischer’s House. Bidders are offered a final opportunity per lot to submit a bid, as the lots are offered by increasing lot number. Bidding during the auction must be done by handing in a completed and signed bidding form to the notary in person. If a bid has been placed during the auction, the notary will take the time to administrate the bid. When all bids have been submitted and collected, the hammer falls and thereby the lot is allocated. The notary announces the hammer price of the particular lot and continues with the next lot.
- The processing of the bids takes place at the auction. The auction is publicly accessible in Fischer’s House for bidders and interested parties, but bidders are not obliged to be present. During the auction, there is a final opportunity to submit a bid. As long as it is possible to bid on a certain lot, no bid amounts will be announced for that lot. After the gavel has fallen, the hammer price is announced and bidding is no longer possible on that lot.
- Bidders are encouraged to bid an amount with random euros, in order to prevent equal highest bids.
- In case of equal highest bids on a lot:
- for equal highest bids until and including € 5,000, a lottery follows by the notary, who randomly determines to whom of the highest bidders the lot is allocated. The other bidder(s) is or are then allocated the state of second-highest bidder. The hammer price is equal to these highest bids. The lottery is executed by the notary during the auction, without insight and influence of the bidders, representatives of FA or any other third parties.
- if the highest bids are higher than € 5,000, a secondary auction follows. During the auction, the notary announces that a secondary auction will take place for the particular lot and the allocation is postponed at most 36 hours. In a secondary auction, the reserve is set to the highest bids. During or directly after the auction, the notary sends a message to the highest bidders with an invitation to submit a new bid per letter, email or fax within 24 hours, which must be higher than the new reserve in order to be valid. The old highest bids remain valid until a new higher bid replaces it. The highest and second-highest bidder and the hammer price are then determined according to art. II.1-2, with the new reserve price set equal to the previous highest bids. If in the secondary auction again more than one bidder has submitted the same highest bid, a lottery follows according to art. II.7.a, with the hammer price set to the newly defined second-highest bid.
- These Terms and Conditions remain applicable if the allocation is determined by lottery or secondary auction.
Art. III – Privacy
- The notary manages all information and tasks that, in order to secure an honest and discrete bidding process, may not be communicated to FA, S&B, bidders or third parties.
- The notary keeps all information regarding the identity of bidders, which come to his attention via bidding forms, among others, strictly confidential until the auction has finished and – after the auction – passes the names and contact details of all bidders, without information regarding their bids, on to FA. As an exception to the aforementioned rule, the name and contact details of the highest and second-highest bidders, per lot will be communicated to FA, to set up the invoice and, respectively, the bonus for the second-highest bidder.
- The notary keeps the bid amounts – including in particular the highest bid – strictly confidential and does not pass this on to FA. The only bidder whose identity and bid amount becomes known to FA is that of the second-highest bidder, in order to allocate the bonus.
- If a bidder does not bid per letter, email or fax, but uses a digital web form of a third party that lists FA’s catalogue online, this bidder should know that this bid is adminstered in the database of that third party in order to be binding. FA guarantees that a bid submitted by this method goes exclusively and directly to the notary. Bidders are advised to bid directly to the notary by letter, e-mail or fax.
Art. IV – Guarantee correctness of information
- The website of FA is the only official medium for correct information on the lots. FA does not ever guarantee the correctness of information that is provided through another medium than the website. If information in a lot description of a third party differs from the information in the catalogue on the website of FA, then strictly the latter information is legally binding.
- FA guarantees that each lot conforms with its description in the catalogue, except when explicitly stated otherwise at the latest on the first viewing day. Bidders are hence advised to visit the website during the viewing days.
- The buyer shall have the right to demand rescission of the sale and a refund of the purchase price if he satisfactorily demonstrates, within twenty years of the auction date, that the lot is defective, like the authenticity, or that its description is incorrect to such an extent that if the buyer had been aware of the defects or incorrect description at the time of bidding, he would not have purchased the lot or would have purchased it only for a substantially lower price. Due to, among others, the age of the lots, a regular restoration, relining or other conservatory treatment is commonly accepted and not worth mentioning.
- The buyer shall not have the aforesaid right under 3 if the defect or incorrect description is announced at the latest on the first viewing day.
- It is the full responsibility of the bidder to obtain knowledge of the condition of the lots. Bidders are encouraged to inspect the lots during the viewing days. As a courtesy, FA may answer the bidder’s request to compose a condition report. The absence of a condition report in no way implies that the lot has no imperfections or restorations.
- Potential restorations can be discussed during the viewing days; FA guarantees a correctly executed restoration during 5 years.
Art. V – Payment, risk and delivery
- A lot is sold and title passes to the buyer in the condition in which the lot is at the time of allocation.
- The lot shall be entirely at the buyer’s expense and risk as of the allocation onwards.
- The lot shall be transferred to the buyer or the buyer’s representative after FA has received payment of the purchase price.
- The purchase price must be paid in full to FA within seven working days after the auction (after notification of the allocation), failure of which the buyer is required to pay an interest equal to the statutory interest. Such interest will be calculated from the date of notification of the allocation until the date of payment in full.
- If the buyer has not paid the full purchase price within thirty days of the auction, the buyer shall be in default and FA shall have the right to take immediate action to recover the outstanding debt, or to consider the contract of sale and purchase cancelled and to sell the lot by auction or private treaty.
- A defaulting buyer shall be liable for any loss or damage sustained by FA as a result of a cancellation and sale as referred to above and shall not be entitled to any surplus arising from such sale.
- Any costs reasonably incurred by FA in connection with the non-fulfilment by the buyer of any obligation arising from these Terms and Conditions shall be payable by the buyer.
Art. VI – Right of exchange
- Every lot, with the exception of lots marked with ‘*’ in the catalogue, may be exchanged for the purchase price for another artwork in the collection of S&B during the period of twelve months after purchase, with a maximum of the given insurance value.
- This right of exchange can be effectuated on the majority of the collection, with the following exceptions: artworks which are destined to be illustrated in the coming exhibition or advertisement and works in consignment. More importantly, the right of exchange does not apply starting twenty days before special selling exhibtions until the last exhibition day.
Art. VII – Bonus for second-highest bidder
- Bonus second-highest bidder: the second-highest bidder (the bidder who submitted the second-highest bid) of a lot receives a bonus 5% of the hammer price. In case of equal highest bids under art. II.7.b, the secondary auction defines the second-highest bidder who receives the bonus. If there is more than one second-highest bidder, the bonus is equally distributed among these second-highest bidders. The bonus is handed out in the form of a voucher. These vouchers can be added up together and are valid for twenty years for a purchase from the collection of S&B.
Art. VIII – VAT
- In accordance with the margin scheme, VAT is charged only over and is included in the buyer’s premium. Buyers entitled to opt for application of the margin scheme may request that VAT also be charged on the auction price. The auction price of lots imported for auction from outside the European Union is always subject to VAT; the lots in question are then marked in the catalogue with ‘**’. The tariff of import is 6% over the entire purchase price.
- VAT-registered enterprises can get this VAT subtracted by opting for the normal VAT scheme instead of the margin scheme. For more information, contact FA.
Art. IX – Remaining statements
- The legal relationship between the buyer(s) and FA shall be governed by the laws of the Netherlands.
- In case of any difference or inconsistency between these Terms and Conditions and information on the website, catalogue, information provided orally or information otherwise communicated by FA, these Terms and Conditions shall prevail.
- In the event of a conflict or inconsistency between the Dutch text and any translation of these terms and conditions, the Dutch text shall prevail. The same holds for the Dutch text on the website and any translation of the website.
- The corresponding courts in Arnhem – to the exclusion of any other than the Supreme Court – are authorized to judge in all conflicts regarding transactions that arise in an auction held by FA.