Ketterer Kunst GmbH & Co.KG Munich
1.1 Ketterer Kunst GmbH & Co. KG seated in Munich, Germany (hereinafter referred to as "auctioneer") sells by auction basically as a commission agent in its own name and for the account of the consignor (hereinafter referred to as "principal"), who is not identified. The auctioneer auctions off in its own name and for own account any items which it possesses (own property); these Terms of Public Auction shall also apply to the auctioning off of such own property; in particular, the surcharge must also be paid for this (see Item 5 below).
1.2 The auction shall be conducted by an individual having an auctioneer's license; the auctioneer shall select this person. The auctioneer is entitled to appoint suitable representatives to conduct the auction pursuant to § 47 of the German Trade Regulation Act (GewO). Any claims arising out of and in connection with the auction may be asserted only against the auctioneer.
1.3 The auctioneer reserves the right to combine any catalog numbers, to separate them, to call them in an order other than the one envisaged in the catalog or to withdraw them.
1.4 Any items due to be auctioned may be inspected on the auctioneer's premises prior to the auction. The time and place will be announced on the auctioneer's website. If the bidder is not or is no longer able to inspect such items on grounds of time - for example, because the auction has already commenced - in submitting a bid such bidder shall be deemed to have waived his right of inspection.
1.5 In accordance with the GwG (Money Laundering Act) the auctioneer is obliged to identify the purchaser and those interested in making a purchase as well as, if necessary, one acting as representative for them and the ”beneficial owner“ within the meaning of § 3 GwG (Money Laundering Act) for the purpose of the execution of the order. The auctioneer is also obliged to register and retain compiled data and obtained information. In this connection the purchaser is obliged to cooperate, in particular to submit required identification papers, in particular in form of a passport, identification card or respective replacement document recognized and authorized by domestic authorities or in line with laws concerning aliens. The auctioneer is authorized to make a copy there of by observing data protection regulations. Legal persons or private companies must provide the respective extract from the Commercial Register or from the Register of Cooperatives or an extract from a comparable official register. The purchaser assures that all identification papers and information provided for this purpose are correct and that he or the one represented by him is the “beneficial owner“ within the meaning of § 3 GwG (Money Laundering Act).
2. Calling / course of the auction / acceptance of a bid
2.1 As a general rule, the starting price is the lower estimate, in exceptional cases it can also be called up below the lower estimate price. The bidding steps shall be at the auctioneer's discretion; in general, the bid shall be raised by 10 % of the minimum price called.
2.2 The auctioneer may reject a bid especially if a bidder, who is not known to the auctioneer or with whom there is no business relation as yet, does not furnish security before the auction begins. Even if security is furnished, any claim to acceptance of a bid shall be unenforceable.
2.3 If a bidder wishes to bid in the name of another person, he must inform the auctioneer about this before the auction begins by giving the name and address of the person being represented and presenting a written authorization from this person. In case of participation as a telephone bidder such representation is only possible if the auctioneer receives this authorization in writing at least 24 hours prior to the start of the auction (= first calling). The representative will otherwise be liable to the auctioneer - at the auctioneer's discretion for fulfillment of contract or for compensation - due to his bid as if he had submitted it in his own name.
2.4 Apart from being rejected by the auctioneer, a bid shall lapse if the auction is closed without the bid being knocked down or if the auctioneer calls the item once again; a bid shall not lapse on account of a higher invalid bid made subsequently.
2.5 The following shall additionally apply for written bids: these must be received no later than the day of the auction and must specify the item, listing its catalog number and the price bid for it, which shall be regarded as the hammer price not including the surcharge and the turnover tax; any ambiguities or inaccuracies shall be to the bidder's detriment. Should the description of the item being sold by auction not correspond to the stated catalog number, the catalog number shall be decisive to determine the content of the bid. The auctioneer shall not be obligated to inform the bidder that his bid is not being considered. The auctioneer shall charge each bid only up to the sum necessary to top other bids.
2.6 A bid is accepted if there is no higher bid after three calls. Notwithstanding the possibility of refusing to accept the bid, the auctioneer may accept the bid with reserve; this shall apply especially if the minimum hammer price specified by the principal is not reached. In this case the bid shall lapse within a period of 4 weeks from the date of its acceptance unless the auctioneer notifies the bidder about unreserved acceptance of the bid within this period.
2.7 If there are several bidders with the same bid, the auctioneer may accept the bid of a particular bidder at his discretion or draw lots to decide acceptance. If the auctioneer has overlooked a higher bid or if there are doubts concerning the acceptance of a bid, he may choose to accept the bid once again in favor of a particular bidder before the close of the auction or call the item once again; any preceding acceptance of a bid shall be invalid in such cases.
2.8 Acceptance of a bid makes acceptance of the item and payment obligatory.
3. Special terms for written bids, telephone bidders, bids in the text form and via the internet, participation in live auctions, post-auction sale.
3.1 The auctioneer shall strive to ensure that he takes into consideration bids by bidders who are not present at the auction, whether such bids are written bids, bids in the text form, bids via the internet or by telephone and received by him only on the day of the auction. However, the bidder shall not be permitted to derive any claims whatsoever if the auctioneer no longer takes these bids into consideration at the auction, regardless of his reasons.
3.2 On principle, all absentee bids according to the above item, even if such bids are received 24 hours before the auction begins, shall be legally treated on a par with bids received in the auction hall. The auctioneer shall however not assume any liability in this respect.
3.3 The current state of technology does not permit the development and maintenance of software and hardware in a form which is entirely free of errors. Nor is it possible to completely exclude faults and disruptions affecting internet and telephone communications. Accordingly, the auctioneer is unable to assume any liability or warranty concerning permanent and fault-free availability and usage of the websites or the internet and telephone connection insofar as such fault lies outside of its responsibility. The scope of liability laid down in Item 10 of these terms shall apply. Accordingly, subject to these conditions the bidder does not assume any liability in case of a fault as specified above such that it is not possible to submit bids or bids can only be submitted incompletely or subject to a delay and where, in the absence of a fault, an agreement would have been concluded on the basis of this bid. Nor does the provider assume any costs incurred by the bidder due to this fault. During the auction the auctioneer shall make all reasonable efforts to contact the telephone bidder via his indicated telephone number and thus enable him to submit a bid by telephone. However, the auctioneer shall not be responsible if it is unable to contact the telephone bidder via his specified telephone number or in case of any fault affecting the connection.
3.4 It is expressly pointed out that telephone conversations with the telephone bidder during the auction may be recorded for documentation and evidence purposes and may exclusively be used for fulfillment of a contract and to receive bids, even where these do not lead to fulfillment of the contract.
The telephone bidder must notify the relevant employee by no later than the start of the telephone conversation if he does not consent to this recording.
The telephone bidder will also be notified of these procedures provided for in Item 3.4 in writing or in textual form in good time prior to the auction as well as at the start of the telephone conversation.
3.5 In case of use of a currency calculator/converter (e.g. for a live auction) no liability is assumed for the accuracy of the currency conversion. In case of doubt the respective bid price in EUR shall prevail.
3.6 Bidders in live auctions are obliged to keep all login details for their account secret and to adequately secure data from access by third parties. Third parties are all persons excluding the bidder. The auctioneer must be informed immediately in case the bidder has notified an abuse of login details by third parties. The bidder is liable for all actions conducted by third parties using his account, as if he had conducted these activities himself.
3.7 It is possible to place bids after the auction in what is referred to as the post-auction sale. As far as this has been agreed upon between the consignor and the auctioneer, such bids shall be regarded as offers to conclude a contract of sale in the post-auction sale. An agreement shall be brought about only if the auctioneer accepts this offer. These Terms of Public Auction shall apply correspondingly unless they exclusively concern auction-specific matters during an auction.
4. Passage of risk / costs of handing over and shipment
4.1 The risk shall pass to the purchaser on acceptance of the bid, especially the risk of accidental destruction and deterioration of the item sold by auction. The purchaser shall also bear the expense.
4.2 The costs of handing over, acceptance and shipment to a place other than the place of performance shall be borne by the purchaser. The auctioneer shall determine the mode and means of shipment at his discretion.
4.3 From the time of acceptance of the bid, the item sold by auction shall be stored at the auctioneer's premises for the account and at the risk of the purchaser. The auctioneer shall be authorized but not obligated to procure insurance or conclude other measures to secure the value of the item. He shall be authorized at all times to store the item at the premises of a third party for the account of the purchaser. Should the item be stored at the auctioneer's premises, he shall be entitled to demand payment of the customary warehouse fees (plus transaction fees).
5. Purchase price / payment date / charges
5.1 The purchase price shall be due and payable on acceptance of the bid (in the case of a post-auction sale, compare Item 3.7, it shall be payable on acceptance of the offer by the auctioneer). Invoices issued during or immediately after the auction require verification; errors excepted.
5.2 Buyers can make payments to the auctioneer only by bank transfer to the account indicated. Fulfillment of payment only takes effect after credit entry on the auctioneer's account.
All bank transfer expenses (including the auctioneer's bank charges) shall be borne by the buyer as far as legal and not prohibited by § 270a BGB.
5.3 The sale shall be subject to the margin tax scheme or the standard tax rate according to the consignor's specifications. Inquiries regarding the type of taxation may be made before the purchase.
5.4.1 Unless otherwise specified, art objects in the catalog are subject to differential taxation.
For differential taxation a premium for single objects will be charged as follows:
- Hammer price up to 500,000 Euro: resulting premium of 32 %.
- The share of the hammer price that exceeds 500,000 Euro is subject to a premium of 27 % and will be added to the premium that incurs for the hammer price up to 500,000 Euro.
- Each item includes the statutory VAT of currently 19 %. In accordance with §26 of German Copyright Act, a droit de suite charge of 2.4 % including VAT is levied for original artworks and photo graphs for the compensation of the statutory right of resale.
5.4.2 Art objects marked 'N' in the catalog were imported into the EU for the purpose of sale. These objects are subject so differential taxation. The advanced import turnover tax of currently 7% of the invoice total is generally added to the invoice total. In accordance with §26 of German Copyright Act, a droit de suite charge of 2.4 % is levied for original artworks and photographs for the compensation of the statutory right of resale.
5.4.3 Art object marked 'R' in the catalog are subject to regular taxation. Accordingly, the purchasing price consists of the hammer price and a premium per single object which is calculated as follows:
Art object marked 'R' in the catalog are subject to regular taxation. Accordingly, the purchasing price consists of the hammer price and a premium per single object which is calculated as follows:
- Hammer prices up to 500,000 Euro: resulting premium of 25 %.
- The share of the hammer price that exceeds 500,000 Euro is subject to a premium of 20 % and will be added to the premium that incurs for the hammer price up to 500,000 Euro.
- The statutory VAT of currently 19 % is added to the sum of hammer price and premium. In accordance with §26 of German Copyright Act, a droit de suite charge of 2.0 % plus 19 % VAT is levied for original artworks and photographs for the compensation of the statutory right of resale.
For contractors entitled to input tax reduction for art and antiquities regular taxation may be applied.
5.5 Export shipments in EU countries are exempt from value added tax on presenting the VAT number. Export shipments in non-member countries (outside the EU) are exempt from value added tax; if the items purchased by auction are exported by the purchaser, the value added tax shall be reimbursed to him as soon as the export certificate is submitted to the auctioneer.
6. Advance payment / reservation of title
6.1 The auctioneer shall not be obligated to release the item sold by auction to the purchaser before payment of all the amounts owed by him.
6.2 The title to the object of sale shall pass to the purchaser only when the invoice amount owed is paid in full. If the purchaser has already resold the object of sale on a date when he has not yet paid the amount of the auctioneer's invoice or has not paid it in full, the purchaser shall transfer all claims arising from this resale up to the amount of the unsettled invoice amount to the auctioneer. The auctioneer hereby accepts this transfer.
6.3 If the purchaser is a legal entity under public law, a separate estate under public law or an entrepreneur who is exercising a commercial or independent professional activity while concluding the contract of sale, the reservation of title shall also be applicable for claims of the auctioneer against the purchaser arising from the current business relationship and other items sold at the auction until the settlement of the claims that he is entitled to in connection with the purchase.
7. Offset and right of retention
7.1 The purchaser can offset only undisputed claims or claims recognized by declaratory judgment against the auctioneer.
7.2 The purchaser shall have no right of retention. Rights of retention of a purchaser who is not an entrepreneur with in the meaning of § 14 of the German Civil Code (BGB) shall be unenforceable only if they are not based on the same contractual relationship.
8. Delay in payment, revocation, auctioneer's claim for compensation
8.1 Should the purchaser's payment be delayed, the auctioneer may demand default interest at the going interest rate for open current account credits, without prejudice to continuing claims. The interest rate demanded shall however not be less than the respective statutory default interest in accordance with §§ 288, 247 of the German Civil Code (BGB). When default occurs, all claims of the auctioneer shall fall due immediately.
8.2 Should the auctioneer demand compensation instead of performance on account of the delayed payment and should the item be resold by auction, the original purchaser, whose rights arising from the preceding acceptance of his bid shall lapse, shall be liable for losses incurred thereby, for e.g. storage costs, deficit and loss of profit. He shall not have a claim to any surplus proceeds procured at a subsequent auction and shall also not be permitted to make another bid.
8.3 The purchaser must collect his purchase from the auctioneer immediately, no later than 1 month after the bid is accepted. If he falls behind in performing this obligation and does not collect the item even after a time limit is set or if the purchaser seriously and definitively declines to collect the item, the auctioneer may withdraw from the contract of sale and demand compensation with the proviso that he may resell the item by auction and assert his losses in the same manner as in the case of default in payment by the purchaser, without the purchaser having a claim to any surplus proceeds procured at the subsequent auction. Moreover, in the event of default, the pur chaser shall also owe appropriate compensation for all recovery costs incurred on account of the default.
8.4 The auctioneer has the right to withdraw from the contract if it turns out after the contract has been closed, that, due to a legal regulation or a regulatory action, he is or was not entitled to execute the contract or that there is a good cause that makes the execution of the contract unacceptable for the auctioneer also in consideration of the buyer's legitimate interests. Such a good cause is given in particular if there are indications suggesting elements of an offense in accordance with §§ 1 section 1 or 2 of the business within the meaning of the GwG (Money Laundering Act) or in case of wanting, incorrect or incomplete disclosure of identity and economic backgrounds of the business within the meaning of the GwG (Money Laundering Act) as well as for insufficient cooperation in the fulfillment of the duties resulting from the GwG (Money Laundering Act), irrespective of whether on the part of the buyer or the consignor. As soon as the auctioneer becomes aware of the circumstances justifying the withdrawal, he will seek clarification without undue delay. As soon as the auctioneer becomes aware of the circumstances justifying the withdrawal, he will seek clarification without undue delay.
9.1 All items that are to be sold by auction may be viewed and inspected before the auction begins. The items are used and are being auctioned off without any liability on the part of the auctioneer for material defects and exclude any guarantee.
However, in case of material defects which destroy or significantly reduce the value or the serviceability of the item and of which the purchaser notifies the auctioneer within 12 months of his bid being accepted, the auctioneer undertakes to assign any claim which it holds against the consignor or - should the purchaser decline this offer of assignment - to itself assert such claims against the consignor. In the event of the auctioneer successfully prosecuting a claim against the consignor, the auctioneer shall remit the resulting amount to the purchaser up to the value of the hammer price, in return for the item's surrender. The purchaser will not be obliged to return this item to the auctioneer if the auctioneer is not itself obliged to return the item within the scope of its claims against the consignor or another beneficiary. The purchaser will only hold these rights (assignment or prosecution of a claim against the consignor and remittance of the proceeds) subject to full payment of the auctioneer's invoice. In order to assert a valid claim for a material defect against the auctioneer, the purchaser will be required to present a report prepared by an acknowledged expert (or by the author of the catalog, or else a declaration from the artist himself or from the artist's foundation) documenting this defect. The purchaser will remain obliged to pay the surcharge as a service charge. The used items shall be sold at a public auction in which the bidder/purchaser may personally participate. The provisions regarding the sale of consumer goods shall not be applicable according to § 474 par. 1 sentence 2 of the German Civil Code (BGB).
9.2 The catalog descriptions and images, as well as depictions in other types of media of the auctioneer (internet, other advertising means, etc.) are given to the best of knowledge and belief and do not constitute any contractually stipulated qualities within the meaning of § 434 of the German Civil Code (BGB). On the contrary, these are only intended to serve as information to the bidder/purchaser unless the auctioneer has expressly assumed a guarantee in writing for the corresponding quality or characteristic. This also applies to expert opinions. The estimated prices stated in the auctioneer's catalog or in other media (internet, other promotional means) serve only as an indication of the market value of the items being sold by auction. No responsibility is taken for the correctness of this information. The fact that the auctioneer has given an appraisal as such is not indicative of any quality or characteristic of the object being sold.
9.3 In some auctions (especially in additional live auctions) video- or digital images of the art objects may be offered. Image rendition may lead to faulty representations of dimensions, quality, color, etc. The auctioneer can not extend warranty and assume liability for this. Respectively, section 10 is decisive.
The purchaser's claims for compensation against the auctioneer, his legal representative, employee or vicarious agents shall be unenforceable regardless of legal grounds and also in case of the auctioneer's withdrawal as stipulated in clause 8.4. This shall not apply to losses on account of intentional or grossly negligent conduct on the part of the auctioneer, his legal representative or his vicarious agents. The liability exclusion does not apply for acceptance of a guarantee or for the negligent breach of contractual obligations, however, in latter case the amount shall be limited to losses foreseeable and contractual upon conclusion of the contract. The auctioneer's liability for losses arising from loss of life, personal injury or injury to health shall remain unaffected.
11. Final provisions
11.1 Any information given to the auctioneer by telephone during or immediately after the auction regarding events concerning the auction - especially acceptance of bids and hammer prices - shall be binding only if they are confirmed in writing.
11.2 Verbal collateral agreements require the written form to be effective. This shall also apply to the cancellation of the written form requirement.
11.3 In business transactions with businessmen, legal entities under public law and separate estates under public law it is additionally agreed that the place of performance and place of jurisdiction shall be Munich. Moreover, Munich shall always be the place of jurisdiction if the purchaser does not have a general place of jurisdiction within the country.
11.4 Legal relationships between the auctioneer and the bidder/purchaser shall be governed by the Law of the Federal Republic of Germany; the UN Convention relating to a uniform law on the international sale of goods shall not be applicable.
11.5 Should one or more terms of these Terms of Public Auction be or become ineffective, the effectiveness of the remaining terms shall remain unaffected. § 306 par. 2 of the German Civil Code (BGB) shall apply.
11.6 These Terms of Public Auction contain a German as well as an English version. The German version shall be authoritative in all cases. All terms used herein shall be construed and interpreted exclusively according to German law.
(As of June 2020)