TERMS OF SALE
Both the sale of goods at our auctions and your relationship with us are governed by the Terms of Consignment (primarily applicable to sellers) the Terms of Sale (primarily applicable to bidders and buyers) and any notices displayed in the saleroom or announced by us at the auction (collectively, the “Conditions of Business”). The Terms of Consignment and Terms of Sale are available at our saleroom on request.
Please read these Terms of Sale carefully. Please note that if you register to bid and/or bid at auction this signifies that you agree to and will comply with these Terms of Sale.
Please note that these Terms of Sale relate to auctions held at our premises only. We have separate terms for online only auctions.
1. Definitions and interpretation
1.1. To make these Terms of Sale easier to read, we have given the following words a specific meaning:
“Auctioneer” means Busby Auctions Ltd, a partnership or company registered in England and Wales with registration number 8642644 and whose registered office is located at North Mills, Bridport, DT6 3BE, or its authorised auctioneer, as appropriate;
“Art Market Participant” means an art market business registered with HMRC under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (as amended);
“Bidder” means a person who places an offer (called a “bid”) for Goods at our auction;
“Buyer” means the person who makes the highest bid for a Lot accepted by the Auctioneer;
“Deliberate Forgery” means: (a) an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source; and (b) which is described in the catalogue as being the work of a particular creator without qualification; and (c) which at the date of the auction had a value materially less than it would have had if it had been as described;
“Hammer Price” means the level of the highest bid for a Lot accepted by the Auctioneer by the fall of the hammer;
“Lot(s)”
“Money Laundering Legislation” means the goods that we offer for sale at our auctions;
means the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (as amended) and related legislation, together with any applicable terrorist financing and legislation on Restrictive Measures;
“Principal” means a person or entity you are acting on behalf of for the purposes of the purchase of the Lot(s);
“Premium” means the fee that we will charge you on your purchase of a Lot to be calculated as set out in Clause 4.1.b;
“Recorded Delivery” means a method of delivery pursuant to which the sender receives a confirmation that a letter has been posted and a signature is obtained from the recipient as a record that it has been delivered;
“Reserve” means the minimum hammer price at which a Lot may be sold;
“Restrictive Measures” means economic or financial sanctions, export controls, embargoes or any other restriction on trade under the laws of the European Union, the United Kingdom or the United States, or in the jurisdiction in which you, your Principal, or any agent acting for you does business;
“Sale Proceeds” means the net amount due to the Seller;
“Seller” means the person who consigns Lots for sale at our auctions;
“Terms of Consignment” means the terms on which we agree with Sellers to offer Lots for sale in our auctions as agent on their behalf;
“Terms of Sale” means these terms of sale, as amended or updated from time to time;
“Total Amount Due” means the Hammer Price for a Lot, the Premium, any applicable artist’s resale right royalty, any VAT due and any additional charges payable by a defaulting buyer under these Terms of Sale;
“Trader” means a Seller who is acting for purposes relating to that Seller’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf;
“VAT” means Value Added Tax or any equivalent sales tax; and
“Website” means our website available at www.busby.co.uk.
1.2. In these Terms of Sale, the words “you”, “yours”, etc. refer to you as the Buyer. The words “we”, “us”, “our” etc. refer to the Auctioneer. Any reference to a ‘Clause’ is to a clause of these Terms of Sale unless stated otherwise.
2. Information that we are required to give to Consumers
2.1. A description of the main characteristics of each Lot as contained in the auction catalogue.
2.2. Our name, address and contact details as set out herein, in our auction catalogues and/or on our Website.
2.3. The price of the Goods and arrangements for payment as described in Clauses 4, 5, 8 and 9.
2.4. The arrangements for collection of the Goods as set out in Clauses 9 and 10.
2.5. Your right to return a Lot and receive a refund if the Lot is a Deliberate Forgery as set out in Clause 14.
2.6. We and Trader Sellers have a legal duty to supply any Lots to you in accordance with these Terms of Sale.
2.7. If you have any complaints, please send them to us directly at the address set out on our Website.
2.8. We also refer you to your warranties as a Bidder and Buyer as set out in Clause 6.
3. Bidding procedures and the Buyer
3.1. You must register your details with us before bidding and provide us with any requested proof of identity and billing information, in a form acceptable to us (more details are set out at Paragraph [13] of the Information for Buyers in the auction catalogue). We reserve the right, where we deem we are so required for regulatory purposes, to reveal your identity and contact details (and those of your Principal) to the Seller. You must also satisfy any security arrangements we have in place before entering the auction room to view or bid.
3.2. We strongly recommend that you attend the auction in person if possible. You are responsible for your decision to bid for a particular Lot. If you bid on a Lot, including by telephone and online bidding, or by placing a commission bid, we assume that you have carefully inspected the Lot and satisfied yourself regarding its condition.
3.3. If you instruct us in writing, we may execute commission bids on your behalf. Neither we nor our employees or agents will be responsible for any failure to execute your commission bid, unless our failure to do so is unreasonable. Where two or more commission bids are recorded at the same level, we have the right to prefer the first bid made (where this can be reasonably ascertained).
3.4. The Bidder placing the highest bid for a Lot accepted by the Auctioneer will be the Buyer at the Hammer Price. However, the Auctioneer shall retain discretion on the running of the auction and in particular, retains the right not to accept a bid and to prefer a bid over any other bids received at the same time. Any dispute about a bid will be settled at our discretion. We may reoffer the Lot during the auction or may settle the dispute in another way. We will act reasonably when deciding how to settle the dispute.
3.5. Bidders will be deemed to act as principals (in other words, acting for their own account and not on behalf of someone else), even if the Bidder is acting as an agent for a third party.
3.6. We may bid on Lots on behalf of the Seller up to one bid below the Reserve.
3.7. We may refuse to accept any bid if it is reasonable for us to do so.
3.8. Bidding increments will be at our sole discretion (but will be in line with standard auction practice).
4. The purchase price
4.1. As Buyer, you will pay:
a. the Hammer Price;
b. a Premium of 30% of the Hammer Price;
c. any artist’s resale right royalty identified as payable on the sale of the Lot; and
d. any VAT due.
5. VAT
5.1. You shall be liable for the payment of any VAT applicable on the Hammer Price and Premium due for a Lot. Please see the symbols used in the auction catalogue for that Lot and the “Information for Buyers” in our auction catalogue for further information.
5.2. We will charge VAT at the current rate at the date of the auction.
5.3. For any items sold under the rules for the Auctioneers’ Margin Scheme, VAT at the standard rate will be charged on the Premium at the standard rate. This VAT cannot be itemised separately on our invoices and is not reclaimable by UK VAT registered Sellers.
6. Buyer Warranties
6.1. You warrant, and where you are acting on behalf of someone else, you will procure that your Principal warrants, that:
6.1.1. the funds to be used for the purchase of the Lot(s) are not connected with nor are derived from any criminal activity, including without limitation tax evasion, money laundering or terrorist financing;
6.1.2. neither you, nor any agent acting for you, nor your Principal, are to the best of your knowledge either under investigation, nor have you been charged with or convicted of without limitation tax evasion, money laundering, terrorist financing or other criminal activities; and
6.1.3. neither you, nor any agent acting for you, nor your Principal, are subject to Restrictive Measures or owned, partly owned or controlled by person(s) subject to such Restrictive Measures.
6.2. Where you are bidding on behalf of another person and you are an Art Market Participant, you warrant that: (i) you have conducted appropriate customer due diligence on the ultimate Buyer of the Goods in accordance with all applicable Money Laundering Legislation; (ii) upon request, you will provide us or any independent third party auditor (employed at our cost) with any identification and any other relevant documentation you have obtained for customer due diligence purposes on the ultimate Buyer of the Goods; (iii) you consent to us relying on this due diligence; and (iv) you will retain for a period of not less than five years the documentation evidencing the due diligence.
6.3. Where you are bidding on behalf of another person and you are not a regulated Art Market Participant, you warrant that you will provide accurate and complete information about your Principal to us.
7. The contract between you and the Seller
7.1. The contract for the purchase of the Lot between you and the Seller will be formed when the hammer falls accepting the highest bid for the Lot at the auction.
7.2. You may directly enforce any terms in the Terms of Consignment against a Seller to the extent that you suffer damages and/or loss as a result of the Seller’s breach of the Terms of Consignment.
7.3. If you breach these Terms of Sale, you may be responsible for damages and/or losses suffered by a Seller or us. If we are contacted by a Seller who wishes to bring a claim against you, we may in our discretion provide the Seller with information or assistance in relation to that claim.
7.4. We normally act as an agent only and will not have any responsibility for default by you or the Seller (unless we are the Seller of the Lot).
7.5. In addition to any other rights we may have to cancel a contract for sale under these Terms of Sale, we may delay completion of a sale, delay release of a Lot or cancel the sale of a Lot in the event:
7.5.1 you are in breach of your warranties in Clause 6; or
7.5.2 we have not completed our enquiries pursuant to the Money Laundering Legislation to our satisfaction; or
7.5.3 we have reason to believe that the transaction might be unlawful for any reason, or that the sale might put us under any civil or criminal liability.
8. Payment
8.1. Immediately following your successful bid on a Lot you will:
8.1.1. give to us, if not already provided to our satisfaction, proof of identity in a form acceptable to us (and any other information that we require in order to comply with our anti-money laundering obligations – please refer to Paragraph 13 of the Information for Buyers in the auction catalogue); and
8.1.2. pay to us the Total Amount Due in any way that we agree to accept payment (for cash, there is an upper limit of 10,000 euros equivalent).
8.2. If you owe us any money, we may use any payment made by you to repay the money you owe us.
9. Title and collection of purchases
9.1. While you are bound by the contract for the purchase of the Lot from the fall of the hammer on your successful bid, the transaction is not completed and ownership in the Lot will not pass to you until:
9.1.1. you have paid us in full the Total Amount Due in cleared funds for that Lot;
9.1.2. you have provided us with the information set out in Clause 8.1.1; and
9.1.3. we have completed our enquiries pursuant to the Money Laundering Legislation to our satisfaction.
9.2. You may not claim or collect a Lot until (i) you have paid for it, (ii) ownership has passed to you and (iii) any applicable storage charge applicable under Clause 9.4 and accrued up until the day of collection have been paid in full by you (at law, the right for a professional to hold on to goods until its services have been paid for is called a “lien”).
9.3. Unless notified otherwise, and subject to the passing of ownership in the Lot to you under Clause 9.1, you will (at your own expense) collect any Lots that you have purchased and paid for either:
9.3.1. not later than five business days following the day of the auction; or
9.3.2. not later than five business days following the date that we have received payment of the Total Amount Due in cleared funds, if later.
9.4. Subject to Clause 9.1, if you do not collect a Lot you have agreed to purchase within any of the time periods set out at Clause 9.3 above, we shall start charging a minimum warehousing charge of £1 per lot per day plus any applicable VAT, starting from the latest of the time periods set out at Clause 9.3 above to expire. You will also be responsible for any reasonable removal and insurance charges in relation to that Lot unless the delay was caused by us.
9.5. Risk of loss or damage to the Lot will pass to you when you (or your agents) take physical possession of the Lot.
9.6. Subject to Clause 9.1, if you do not collect the Lot that you have paid for within thirty days after the auction, we may sell the Lot. We will pay the proceeds of any such sale to you, but (unless the delay was caused by us) will deduct any storage charges or other sums that we have incurred in the storage and sale of the Lot. We reserve the right to charge you a selling commission at our standard rates on any such resale of the Lot.
10. Remedies for non-payment or failure to collect purchases
10.1. Please do not bid on a Lot if you do not intend to buy it. If your bid is successful, these Terms of Sale form your contract of purchase. This means that you will have to carry out your obligations set out in these Terms of Sale. If you do not comply with these Terms of Sale we may (acting on behalf of the Seller and ourselves) pursue one or more of the following measures:
10.1.1. take action against you for damages for breach of contract;
10.1.2. reverse the sale of the Lot to you and/or any other Lots sold by us to you;
10.1.3. resell the Lot by auction or private treaty (in which case you will have to pay any difference between the price you should have paid for the Lot and the price we sell it for as well as the charges outlined in Clause 9. Please note that if we sell the Lot for a higher amount than your winning bid, the extra money will belong to the Seller;
10.1.4. remove, store and insure the Lot at your expense;
10.1.5. if you do not pay us within five business days of your successful bid, we may charge interest at a rate not exceeding 1.5% per month on the total amount due;
10.1.6. keep that Lot or any other Lot sold to you until you pay the Total Amount Due;
10.1.7. reject or ignore bids from you or your agent at future auctions or impose conditions before we accept bids from you; and/or
10.1.8. if we sell any Lots for you, use the money made on these Lots to repay any amount you owe us.
10.2. We will act reasonably when exercising our rights under Clause 10.1. We will contact you before exercising these rights and try to work with you to correct any non-compliance by you with these Terms of Sale.
11. Health and safety
Although we take reasonable precautions regarding health and safety, you are on our premises at your own risk. Please note the lay-out of the premises and security arrangements. Neither we nor our employees or agents are responsible for the safety of you or your property when you visit our premises, unless you suffer any injury to your person or damage to your property as a result of our, our employees’ or our agents’ negligence.
12. Seller’s Warranties
12.1. The Seller warrants to us and to you that:
12.1.1. the Seller is the true owner of the Lot for sale or is authorised by the true owner to offer and sell the Lot at auction;
12.1.2. the Seller is able to transfer good and marketable title to the Lot to you free from any third party rights or claims; and
12.1.3. as far as the Seller is aware, the main characteristics of the Lot set out in the auction catalogue (as amended by any notice displayed in the saleroom or announced by the Auctioneer at the auction), and any documentation provided to you by the Seller in relation to the Lot, are correct.
12.2. If, after you have placed a successful bid and paid for a Lot, any of the warranties above are found not to be true, please notify us in writing. Neither we nor the Seller will be liable to pay you any sums over and above the Total Amount Due and we will not be responsible for any inaccuracies in the information provided by the Seller except as set out below.
12.3. Please note that many of the Lots that you may bid on at our auction are second-hand. If a Lot is not second-hand and you purchase the Lot as a Consumer from a Seller that is a Trader, a number of additional terms may be implied by law in addition to the Seller’s warranties set out at Clause 12.1 (in particular under the Consumer Rights Act 2015). These Terms of Sale do not seek to exclude your rights under law as they relate to the sale of these Lots.
12.4. Save as expressly set out above, all other warranties, conditions or other terms which might have effect between the Seller and you, or us and you, or be implied or incorporated by statue, common law or otherwise are excluded.
13. Descriptions, condition and safety
13.1. Our descriptions of the Lot will be based on: (a) information provided to us by the Seller of the Lot (for which we are not liable); and (ii) our opinion (although it is likely that we will not be able to carry out a detailed inspection of each Lot). The actual colour of the Lot may vary from the images in the auction catalogue.
13.2. We will give you a number of opportunities to view and inspect the Lots before the auction. You (and any independent consultants acting on your behalf) must satisfy yourself about the accuracy of any description of a Lot. We shall not be responsible for any failure by you or your consultants to properly inspect a Lot.
13.3. Representations or statements by us as to authorship, genuineness, origin, date, age, provenance, condition or estimated selling price involve matters of opinion. We undertake that any such opinion will be honestly and reasonably held and accept liability for opinions given negligently or fraudulently.
13.4. Please note that many of the Lots that you may bid on at our auction are second-hand and are unlikely to be in perfect condition. Lots are sold “as is” (i.e. as you see them at the time of the auction). Neither we nor the Seller accept any liability for the condition of second-hand Lots, for their fitness for purpose, or for any condition issues affecting a Lot if such issues are included in the description of a Lot in the auction catalogue (or in any saleroom notice) and/or which the inspection of a Lot by the Buyer ought to have revealed.
13.5. The sale of Lots containing elephant ivory is banned, subject to some exceptions. Where we offer Lots containing elephant ivory from time to time, we rely on the documentation obtained by the Seller of the Lot confirming that the Lot satisfies the relevant exemptions. We cannot guarantee that any certificate or other documentation provided by us (on the Seller’s behalf) to you in connection with the sale of the Lot is valid or accurate.
13.6. All Lots with electrical components are sold as “antiques” for their historical and decorative attributes for collection and display only, and are not intended for use. If you buy Lots with electrical components and intend to use them, you must first ask a qualified electrician to check them for compliance with safety regulations.
13.7. All Lots of furniture are sold as a collector’s item for display purposes and are not supplied for use. Such Lots may not comply with applicable furniture and safety regulations. Therefore, if you do intend to use such Lots for private use or otherwise, you must first ensure that they are refurbished and rendered compliant with any applicable furniture and safety regulations.
14. Deliberate Forgeries
14.1. You may return any Lot which you consider with some cause to be a Deliberate Forgery to us within three months of the auction, provided that you return the Lot to us in the same condition as when it was released to you, accompanied by a written statement identifying the Lot from the relevant catalogue description and a written statement of defects.
14.2. If we are satisfied, acting reasonably, that the Lot is a Deliberate Forgery and it has been returned to us within the time specified in Clause 14.1, we will refund the money paid by you for the Lot (including any Premium and applicable VAT) PROVIDED THAT you will have no right to a refund under this Clause 14.2 if:
14.2.1. the catalogue description reflected the accepted view of experts as at the date of the auction; or
14.2.2. you personally are not able to transfer good and marketable title in the Lot to us.
14.3. If you have sold the Lot to another person, we will only be liable to refund the price that you paid for the Lot. We will not be responsible for repaying any additional money you may have made from selling the Lot.The rights under this Clause 14 are given to you as Buyer in our auction; they are not given to, and may not be transferred or assigned to, any third party.
14.4. Your right to return a Lot that is a Deliberate Forgery does not affect your legal rights and is in addition to any other right or remedy provided by law or by these Terms of Sale.
15. Our liability to you
15.1. We will not be liable for any loss of opportunity or disappointment suffered as a result of participating in our auction.
15.2. In addition to the above, neither we nor the Seller shall be responsible to you and you shall not be responsible to the Seller or us for any other loss or damage that any of us suffer that is not a foreseeable result of any of us not complying with the Conditions of Business. Loss or damage is foreseeable if it is obvious that it will happen or if at the time of the sale of the Lot, we, you and the Seller knew it might happen.
15.3. You should note that Lots are sold as antiques for their decorative attributes rather than for use, and are often of considerable age and uncertain manufacture; neither we nor the Seller accepts any liability for loss or damage to the Lots, or any other loss or damage, that is caused by or results from any inherent vice or defect affecting the Lots.
15.4. Subject to Clause 15.4, if we are found to be liable to you for any reason (including, amongst others, if we are found to be negligent, in breach of contract or to have made a misrepresentation), our liability will be limited to the total purchase price paid by you to us for any Lot.
15.5. Notwithstanding the above, nothing in these Terms of Sale shall limit our liability (or that of our employees or agents) for:
15.5.1. death or personal injury resulting from negligence (as defined in the Unfair Contract Terms Act 1977); or
15.5.2. fraudulent misrepresentation; or
15.5.3. any liability which cannot be excluded by law.
16. Notices
16.1. All notices between you and us regarding these Terms of Sale must be in writing and signed by or on behalf of the party giving it.
16.2. Any notice referred in Clause 16.1 may be given:
16.2.1. by delivering it by hand; or
16.2.2. by first class pre-paid post or Recorded Delivery; or
16.2.3. by email, provided that a copy is also sent by first class pre-paid post or Recorded Delivery. A notice given by email will be deemed to be signed for the purposes of this Clause 16.1 if the name of the sender appears in a signature position after the body of the email and has not been added automatically by the sender’s email server.
16.3. Notices must be sent:
16.3.1. by hand, by first class pre-paid post or Recorded Delivery:
a. to us, at our address set out in these Terms of Sale or at our registered office address appearing on our Website; and
b. to you, at the last postal address that you have given to us as your contact address in writing; or
16.3.2. by email:
a. to us, by sending the notice to both the following email addresses:
[email protected]
[email protected]
b. to you, by sending the notice to any email address that you have given to us as your contact email address in writing.
16.4. Notices will be deemed to have been received:
16.4.1. if delivered by hand, on the day of delivery; or
16.4.2. if sent by first class pre-paid post or Recorded Delivery, two business days after posting, exclusive of the day of posting; or
16.4.3. if sent by email, at the time of transmission unless sent after 17.00 in the place of receipt in which case they will be deemed to have been received on the next business day in the place of receipt (provided that a copy has also been sent by pre-paid post or Recorded Delivery as set out in Clause 16.3.1.
16.5. Any notice or communication given under these Terms of Sale will not be validly given if sent by fax, any form of messaging via social media or text message.
17. Data Protection
We will hold and process any personal data in relation to you in accordance with our current privacy policy, a copy of which is available on request.
General
17.1. We may, acting reasonably, refuse admission to our premises or attendance at our auctions by any person.
17.2. We act as an agent for our Sellers. The rights we have to claim against you for breach of these Terms of Sale may be used by either us, our employees or agents, or the Seller, its employees or agents, as appropriate. Other than as set out in this Clause 18.2, these Terms of Sale are between you and us and no other person will have any rights to enforce any of these Terms of Sale.
17.3. We may use special terms in the catalogue descriptions of particular Lots. You must read these terms carefully along with any glossary provided in our auction catalogues.
17.4. Each of the Clauses of these Terms of Sale operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining Clauses will remain in full force and effect.
17.5. We may change these Terms of Sale from time to time, without notice to you. Please read these Terms of Sale carefully, as they may be different from the last time you read them.
17.6. Except as otherwise stated in these Terms of Sale, each of our rights and remedies are: (a) are in addition to and not exclusive of any other rights or remedies under these Terms of Sale or general law; and (b) may be waived only in writing and specifically. Delay in exercising or non-exercise of any right under these Terms of Sale is not a waiver of that or any other right. Partial exercise of any right under these Terms of Sale will not preclude any further or other exercise of that right or any other right under these Terms of Sale. Waiver of a breach of any term of these Terms of Sale will not operate as a waiver of breach of any other term or any subsequent breach of that term.
17.7. These Terms of Sale and any dispute or claim arising out of or in connection with them (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of England and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
