Terms & Conditions
- The auctioneer meets possible consumers at two points. Firstly, the seller is a consumer of the auctioneers services. Secondly, buyers, though not primarily contracting with the auctioneer, who is merely an agent for the seller, nevertheless normally contract on standard conditions laid down by the auctioneer as agent. Some of these conditions create a direct contract between buyer and auctioneer.
- These conditions of business are taken from the model provided by the RICS by consultation with the Office of Fair Trading. It is designed to reflect the law at the start of the new millennium and provide what protection is reasonable for the seller, the auctioneer and the buyer in respect of the duties and liabilities arising from the numerous transactions which take place throughout England and Wales. The authors had in mind general and specialised sales of chattels, including fine art.
- The two primary documents are the “Terms of consignment for sellers”, and the “Conditions of sale”.
It is of course essential that buyers and sellers are bound by the relevant conditions.
Information for Buyers
- Introduction. The following informative notes are intended to assist buyers, particularly those inexperienced or new to our salerooms. All sales are conducted on our printed ‘Conditions of sale’, which are readily available and printed in our auction catalogues. Our staff will be happy to help you if there is anything you do not fully understand.
- Agency. As auctioneers we usually contract as agents for the seller, whose identity, for reasons of confidentiality, is not normally disclosed. Accordingly, if you buy your primary contract is with the seller.
- Estimates. Estimates are designed to help buyers gauge what sort of sum might be involved for the purchase of a particular lot. The lower estimate may represent a reserve price and certainly will not be below it. Estimates do not include buyer’s premium or VAT (where chargeable). Estimates are prepared some time before the sale and may be altered by announcement before the sale. They are in no sense definitive and are subject to constant revision.
- Buyer’s premium. The ‘Conditions of sale’ oblige buyers to pay a buyer’s premium at 15% on the hammer price of each lot purchased. In the case of lots purchased online via www.the-saleroom.com, this will be charged at 18% on the hammer price. In addition, VAT is payable on this premium. All lots are sold using the auctioneers’ margin scheme and it should be noted that the VAT charged on the premium is not recoverable as input tax.
- Condition and description of lots. We are primarily agents for the seller. We are dependent on information provided by the seller and whilst we may inspect lots and act reasonably in taking a general view about them we are normally unable to carry out a detailed or any examination of lots in order to ascertain their condition in the way in which it would be wise for a buyer to do. Intending buyers have ample opportunity for inspection of goods and therefore accept responsibility for inspecting and investigating lots in which they may be interested. Please note carefully the exclusion of liability for the condition of lots contained in the ‘Conditions of sale’. Neither the seller nor we, as the auctioneers, accept any responsibility for their condition. In particular, mechanical objects of any age are not guaranteed to be in working order. Additionally, in specified circumstances lots mis-described because they are ‘deliberate forgeries’ may be returned and repayment made. There is a 14 day time limit from the date of the sale, not date of collection or receipt. The expression ‘deliberate forgery’ is defined in our ‘Conditions of sale’.
- Electrical goods. Items are not tested for safety. You are advised to have any electrical items checked over for compliance with safety regulations by a qualified electrician before use.
- Export of goods. Buyersd intending to export goods should ascertain (a) whether an export license is required and (b) whether there is any specific prohibition on importing goods of that character because e.g. They may contain prohibited materials such as ivory. Please ask us if you need help.
- Bidding in person. Bidders are required to register before the sale commences and lots will be invoiced to the name and address on the registration form.
- Absentee bidding. Commission bids may be left with the auctioneers indicating the maximum amount to be bid excluding buyer’s premium. They will be executed as cheaply as possible having regard to the reserve (if any) and competing bids. If two buyers submit identical bids, the auctioneer may prefer the first bid received. If there are genuine reasons why you are unable to leave a commission bid and you wish to bid by telephone then we will, if there are sufficient staff and telephone lines available, arrange to call you to participate in the bidding. There are inherent dangers with this practice, therefore all arrangements shall be entirely at the bidder’s risk. Absentee bid instructions must be received by telephone or email at least one hour prior to the sale.
- Live internet bidding. In completing the bidder registration on www.the-saleroom.com and providing your credit card details, and unless alternative arrangements are agreed with Burstow & Hewett, you
(i)authorise Burstow & Hewett, if they so wish, to charge the credit card given in part or full payment, including all fees, for items successfully purchased in the sale via www.the-saleroom.com, and
(ii)confirm that you are authorised to provide these credit card details to Burstow & Hewett through www.the-saleroom.com
- Methods of payment. Accounts are due for settlement on saleday.
The following methods of payment are acceptable. There are no exceptions to this policy. To avoid undue embarrassment for yourself or our staff, please do not ask for preferential treatment. First-time buyers who cannot attend to pay in person (chip-and-pin), must be able to pay by bank transfer. We will not accept credit/debit card payments by telephone (cardholder not present) from first time buyers.
I. Cash. Single payments up to £10,000 only.
II. Debit card. No limit, no additional charge.
III. Credit card. No limit (2% fee)
IV. Bank draft & building society cheque. No limit
V. Cheques. Accepted up to the limit of the guarantee card for immediate clearance.
For sums exceeding this, and you are not known to the auctioneers, we will
Retain the goods for 7 working days to establish clearance of funds.
VI. Bank transfer. Payments to Burstow & Hewett clients account
51-70-12, no 01151622, Natwest bank, 9 Devonshire Road, Bexhill on sea, East Sussex.
- Collection and storage. Goods can be collected as soon as they are paid for and within 7 days of the sale. If goods remain with us and we have no contrary written advice of your intentions the items will be moved to storage and reasonable labour charges levied and storage at the rate of £2 + vat per lot per day per lot for small items and £5 per lot per day for furniture and large items.
- Late payment penalties. An account remaining outstanding after 14 days will have a £20 + vat administration charge applied. We require payment to terms. Payment must be made on time, in full, and without any deduction, set-off or counterclaim. If you do not have the funds in place to settle the account, you are advised not to bid. In the event that an account is outstanding after 30 days, we will refer the matter to a debt collecting agent, which will incur a surcharge of 20% of the debt plus vat. You agree that you will be legally liable to pay us that surcharge, and the payment of the same can be enforced against you in court.
Terms of consignments for sellers
- Interpretation. In these terms the words ‘you’, ‘yours’ etc refer to the seller and if the consignment of goods to us is made by an agent we assume that the seller has authorised the consignment and that the consignor has the seller’s authority to contract. Similarly, the words ‘we’, ‘us’, etc, refer to the auctioneers.
- Commission is charged to sellers at 15%+vat (Minimum fees per statement of £5+vat.)
- Removal costs. Items for sale must be consigned to the saleroom by any stated deadline and at your expense. We are able to assist you with this process using our staff and transport, and there may be a charge for this which will be deducted from any sale proceeds, minimum charge £15+vat.
- Illustrations. If we consider that a lot should be illustrated we will do so. Illustrations on the internet are free. The copyright in respect of such illustrations shall be property of us, the auctioneers, as is the text of the catalogue.
- Minimum bids and our discretion. All goods are put up for sale without reserve but at the auctioneer’s discretion unless written instructions as to reserves are received at least 48 hours prior to the commencement of the sale. The minimum reserve acceptable is £30. If it is not worth that it should not really have a reserve. Reserved goods will normally be offered subject to agreed figures between us before the sale in accordance with clause 6. If you specifically give us ‘discretion’ we may accept a bid of up to 10% below the formal fixed reserve.
- Reserves & estimates. You are entitled to place prior to the auction a reserve on any lot consigned, being the minimum hammer price at which that lot may be sold. Reserves must be reasonable and we may decline to offer goods, which in our opinion would be subject to an unreasonably high reserve. A reserve once set cannot be changed except with our consent. Where a reserve has been placed only we may bid on your behalf and only up to the reserve (if any) and you may in no circumstances bid personally. Estimates are not reserves. Estimates are given as a guide to buyers. Unreserved items may sell at a fraction of an estimate if no reserve has been agreed.
- Electrical items. All electrical items are sold as seen and without guarantee, unless you notify us otherwise. By entering electrical goods for sale by auction you assure us that they are safe to use and have been properly tested.
- Soft furnishings. The sale of soft furnishings is strictly governed by statute law in the interests of fire safety. Goods found to infringe safety regulations will not be offered and must be removed at your expense. We reserve the right to dispose of unsafe goods as refuse, at your expense and without further reference to the vendor. The minimum fee is £15 + vat per item.
- Descriptions. Please assist us with accurate information as to the provenance etc of goods where this is relevant. There is strict liability for the accuracy of descriptions under modern consumer legislation and in some circumstances responsibility lies with the seller if inaccuracies occur. We will assume that you have approved the catalogue description of your lots unless informed to the contrary. Where we are obliged to return the price to the buyer when the lot is a deliberate forgery under condition 15 of the conditions of sale and we have accounted to you for the proceeds of sale you agree to reimburse us the sale proceeds. Vendor’s attention is drawn to the fact that we are general valuers and auctioneers, covering a very wide field of chattels and are unable to provide experts in each field for specialist knowledge or advice. Whilst we endeavour to give the best service that our general practice will allow, we do not hold ourselves as being experts in any particular field and will not be held responsible for any subsequent event or opinion which might materially affect the value of any article. At the vendor’s express request the auctioneers will be pleased to obtain the services of a specialist for which an appropriate fee will be charged.
- Unsold or withdrawn items. If a reserved item is unsold it will be re-offered (sometimes within 7 days and without notice) and the reserve will be lowered by 30% each time of entry, unless otherwise instructed. Lots will be re-offered until sold or collected. Where in our opinion an item is unsaleable you must collect such items from the saleroom promptly on being so informed, otherwise storage charges will be incurred. If any item is unsaleable by virtue of failing to attract a bid we will have absolute discretion to dispose of that item and charge for the service.
- Withdrawn and bought-in items. Once an item has been entered for sale, should you choose to withdraw it you will be liable to incur a charge of 15% +vat on being bought in or withdrawn after being catalogued. This will be based on any reserve set or the lower estimate.
- Conditions of sale. You agree that all goods will be sold subject to our conditions of sale. In particular you undertake that you have the right to sell the goods, either as owner or agent for the owner. You undertake to compensate us and any buyer or third party for all losses, liabilities and expenses incurred in respect of and as a result of any breach of this undertaking.
- Authority to deduct commission and expenses and retain premium. You authorise us to deduct commission at the stated rate and all expenses incurred for your account from the hammer price and consent to our right to retain beneficially the premium paid by the buyer in accordance with our conditions of sale, and any interest earned on the sale proceeds until the date of settlement. You authorise us in our discretion to negotiate a sale by private treaty in the case of lots unsold at auction while they remain on our premises, in which the same charges will be payable as if such lots had been sold at auction.
- Warehousing. We disclaim all liability for goods delivered to our saleroom without sufficient sale instructions, and reserve the right to make minimum warehousing charge of £2 per lot per day for small items and £5 per lot per day for furniture and large items. Unsold lots are subject to the same charges if you do not remove them within a reasonable period of time. If not removed within 4 weeks we reserve the right to sell them and defray charges from any net proceeds of sale or at your expense to consign them to the local authority for disposal.
- Settlement. After sale settlement of the net sum due to you normally takes place after 14 days of the sale, by crossed cheque to the seller, unless the buyer has not paid for the goods. In this case no settlement will be made but we will take your instructions in the light of our conditions of sale. You authorise any sums owed by you to us on other transactions to be deducted from the sale proceeds. You must note the liability to reimburse the proceeds of sale to us as under the circumstances provided for in condition 9 above. You should therefore bear this potential liability in mind before parting with the proceeds of sale until the expiry of 28 days from the sale date.
- Insurance cover and risk. Unless otherwise instructed in writing, all goods on our premises and in their custody will be insured against the risk of fire, theft following forcible entry and water damage (but not against accidental breakage or damage). The value of the goods to be covered shall be the reserve, or in the case of unreserved lots, the lower estimate. We shall not be responsible for damage to or the loss, theft or destruction of any goods not so insured upon the owner’s written instructions. We shall not be responsible for accidental breakage, loss or damage howsoever caused, unless directly caused by the negligence of their employees. In respect of any article delivered to us, if the vendor has in force a policy of insurance in which is specifically mentioned as being insured, whether or not for any agreed sum or value, the vendor shall notify his insurers and shall himself note our interest as bailee in such policy.
- Ownership & indemnity. The vendor declares that the goods entered are their unencumbered property and that they are free from and hire purchase or financial agreement. The vendor shall duly indemnify us against any claims in connection with any goods sold by us on the vendor’s behalf.
- Value added tax. A vendor who sends for sale by auction any chattel which is an asset of business must disclose to us whether or not they have a registered VAT number. This information must be supplied to the auctioneer on or prior to delivery of goods.
- Clients’ money. You are advised that all clients’ money is held in the following account with NatWest bank, 9 Devonshire Road, Bexhill on sea, East Sussex, TN40 1GW. Burstow and Hewett Granary clients account, sort code 51-70-12, account no 01151622.
- Complaints. We operate a complaints handling procedure, which is available on request.
Conditions of Sale
Burstow & Hewett (B&H) carries on business with bidders, buyers and all those present in the auction room prior to or in connection with a sale on the following general conditions and on such other terms, conditions, and notices as may be referred to herein.
- Definitions:In these conditions:
(a) ‘Auctioneer’ means the firm of B&H or its authorised auctioneer, as appropriate.
(b) ‘Deliberate forgery’ means an imitation made with the intention of deceiving as to authorship, origin, date, age, period, culture or source but which is unequivocally described in the catalogue as being the work of a particular creator 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 the description.
(c) ‘Hammer price’ means the level of bidding reached (at or above any reserve) when the auctioneer brings down the hammer.
(d) ‘Terms of consignment’ means the stipulated terms and rates of commission on which (B&H) accepts instructions from sellers or their agents.
(e) ‘Total amount due’ means the hammer price in respect of the lot sold together with any premium, value added tax chargeable and any other amounts due to us by the seller in whatever capacity and however arising.
(f) ‘You’, ‘Yours’, etc, refers to the buyer as identified in condition 2.
(g) The singular includes the plural and vice versa as appropriate.
- Bidding procedures and the buyer:
(a) Bidders are required to register their particulars before bidding and to satisfy any security arrangements before entering the auction room to view or bid.
(b) The maker of the highest bid accepted by the auctioneer conducting the sale shall be the buyer at the hammer price and any dispute about the bid shall be settled at the auctioneer’s absolute discretion by re-offering the lot during the course of the auction or otherwise. The auctioneer shall act reasonably in exercising this discretion.
(c) Bidders shall be deemed to act as principals.
(d) Our right to bid on behalf of the seller is expressly reserved up to the amount of any reserve and the right to refuse any bid is also reserved.
- Increments: Bidding increments shall be at the auctioneers sole discretion.
- The purchase price: The buyer shall pay the hammer price together with a premium theron of 15%. In the case of lots purchased live on-line via www.the-saleroom.com this will be charged at 18% on the hammer price. Buyer’s premium is also subject to VAT at the rate imposed by law.
- Payment: Immediately a lot is sold you will:
(a) give to us, if requested, proof of identity, and
(b) Pay to us the total amount due in cash or in such other way as is agreed by us.
- Title and collection of purchases:
(a) The ownership of any lots purchased shall not pass to you until you have made payment in full to us of the total amount due of all lots on your account.
(b) You shall at your own risk and expense take away any lots that you have purchased and pay for not later than 3 working days following the day of the auction or upon clearance of any cheque used for payment, after which you will be responsible for any removal, storage and insurance charges.
(c) No purchase can be claimed or removed until it has been paid for.
- Remedies for non-payment or failure to collect purchases:
If any lot is not paid for in full and taken away in accordance with these conditions or if there is any other breach of these conditions, we, as agent for the seller and on our own behalf, shall at our absolute discretion and without prejudice to any other rights we may have, be entitled to exercise one or more of the following rights and remedies:
(a) To proceed against you for damages for breach of contract.
(b) To rescind the sale of that lot and/or any other lots sold by us to you.
(c) To resell the lot (by auction or private treaty) in which case you shall be responsible for any resulting deficiency in the total amount due (after crediting any part payment and adding any resale costs). Any surplus so arising shall belong to the seller.
(d) To remove, store and insure the lot at your expense and, in the case of storage, either at our premises or elsewhere.
(e) To charge interest at a rate not exceeding 5% over the NatWest standard rate on the total amount due to the extent it remains unpaid for more than three working days after the sale.
(f) To retain that or any other lot sold to you until you pay the total amount due.
(g) To reject or ignore bids from you or your agent at future auctions or to impose conditions before any such bids shall be accepted.
(h) To apply any proceeds of sale of other lots due or in future becoming due towards the settlement of the total amount due and to exercise a lien (that it a right to retain possession of) any of your property in our possession until the debt due is satisfied.
We shall, as agent for the seller and on our own behalf pursue these rights and remedies only so far as is reasonable to make appropriate recovery in respect of breach of these conditions.
- Third party liability. All members of the public on our premises are there at their own risk and must note the layout of the accommodation and security arrangements. Accordingly neither the auctioneer nor our employees or agents shall incur liability for death or personal injury (except as required by law by reason of our negligence) or similarly for the safety of the property of persons visiting prior to or at a sale.
- Commission bids: Whilst prospective buyers are strongly advised to attend the auction and are always responsible for any decision to bid for a particular lot and shall be assumed to have carefully inspected and satisfied themselves as to its condition, we will if so instructed clearly and in writing execute bids on their behalf. Neither the auctioneer nor our employees or agents shall be responsible for any failure to do so save where such failure is unreasonable. Where two or more commission bids at the same level are recorded we reserve the right in our absolute discretion to prefer the first bid so made.
- Warranty of title and availability: The seller warrants to the auctioneer and you that the seller is the true owner of the property consigned or is properly authorised by the true owner to consign it for sale and is able to transfer good and marketable title to the property free from any third party claims.
- Agency: The auctioneer normally acts as agent only and disclaims any responsibility for default by sellers or buyers.
- Terms of sale: The seller acknowledges that lots are sold subject to the stipulations of these conditions in their entirety and on the ‘terms of consignment’ as notified to the consignor at the time of the entry of the lot.
- Descriptions and condition:
(a) Whilst we seek to describe lots accurately, it may be impractical for us to carry out exhaustive due diligence on each lot. Prospective buyers are given ample opportunities to view and inspect before any sale and they (and any independent experts on their behalf) must satisfy themselves as to the accuracy of any description applied to a lot. Prospective buyers also bid on the understanding that, inevitably, 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 shall be honestly and reasonably held and accept liability only for opinions given negligently or fraudulently. Subject to the foregoing neither we the auctioneer nor the seller accept liability for the correctness of such opinions and all conditions and warranties, whether relating to description, condition or quality of lots, express, implied or statutory, are hereby excluded.. This condition is subject to the next following condition concerning deliberate forgeries.
(b) Private treaty sales made under these conditions are deemed to be sales by auction for purposes of consumer legislation.
- Forgeries: Notwithstanding the preceding condition, any lot which proves to be a deliberate forgery (as defined) may be returned to us by you within 14 days of the auction (not collection) provided it is in the same condition as when bought, and is accompanied by particulars identifying it from the relevant catalogue description and a written statement of defects and FACTUAL EVIDENCE, not just a chosen ‘opinion’. If we are satisfied from the evidence presented that, in light of the catalogue description, the lot is a deliberate forgery we shall refund the money paid by you for the lot including any buyer’s premium. The seller and buyer agree agree to be bound by our decision.
- General: We shall have the right at our discretion, to refuse admission to our premises or attandance at our auctions by any person.
Glossary of cataloguing terminology
- Precious metals
The weights and measures of platinum, gold, silver and other precious metals are appoximate guides given from the most basic equipment. As all lots are sold as objects and not as ‘value-by-weight’ these are sufficient for the purpose of auction sale.
- Gemstones and jewels
Many coloured gemstones have been subjected to a variety of treatments designed to enhance their appearance, for example heating is regularly used to improve colour or transparency in rubies or sapphires. Other treatments such as oiling, enhance the clarity of emeralds. Other coloured gemstones may have undergone permanent or semi-permanent treatments such as dyeing, irradiation, coating or impregnation, which may require further re-treatment in order to retain their appearance. The jewellery trade generally accepts these treatments.
Recent advancements in technology have led to some diamonds being treated in a variety of ways designed to enhance their appearance. These treatments can include fracture filling, laser drilling, irradiation and coating. It is not possible for Burstow and Hewett to guarantee that all lots containing diamonds are free from these enhancements.
All dimensions and estimated weights of gemstones have been determined without unsetting the stones and are therefore only approximate because of limitations imposed by the mount. Estimated weights are normally calculated using the most basic equipment.
- Books and printed matter
These items are not sold subject to collation and are not returnable once removed from the premises.
- Paintings, drawings and sculpture
Any statement as to authorship, attribution, date, age, provenance and condition is a statement of opinion and is not to be taken as a statement or representation of fact.
A picture catalogued with the forename(s) and surname of the artist is in our opinion a work by that artist. These are the only works that carry our limited guarantee and may be returned within 14 days of the sale day if found not to be authentic. All other works are sold as seen and without any guarantee, but you should use the following glossary in conjunction with our catalogue description:
Surname only - with or without initials. A work which may or may not be by the artist.
Attributed to.... In our opinion probably a work by the artist but not guaranteed.
After....In our opinion a copy of a known work of the artist.
Circle of.....In our opinion a work of the period of the artist, which may or may not be by the artist.
Follower of.....In our opinion a work in the style of the artist, which may be of a later date.
Bears signature.....Has a signature/date/inscription which may be by the artist or may have been added at a later date.
Manner of......In our opinion a work in a style related to that of the artist, but of a later date.
Dimensions are given height before width, and are the size of the image, not the overall dimensions of the frame.
- Artist’s resale right (ARR) or Droit de Suite
The use of ARR in a description warns the buyer that an extra charge may be payable.
Following the UK implementation of the EU Artist’s resale right directive in February 2006 and the derogation for deceased artists in January 2012, living artists and the heirs of those that died less than 70 years ago may receive a fraction of a resale royalty that is payable by you. The royalty is 4% of the hammer price, which is split 50/50 between the buyer and seller, meaning that if you buy any qualifying work at auction, an extra 2% royalty charge will be added to your invoice at time of payment. VAT is not payable on this royalty charge.
The payment is calculated on qualifying works of art which are sold for more than Eur 1,000.
No handling costs or additional fees are retained by auctioneers despite having to do the entire extra administration work pre and post sale. The sum is then paid to self described not-for-profit collecting societies who will extract their administration fees.
If you find this complicated or objectionable please forward your complaint to the Minister for Intellectual Property www.bis.gov.uk/contact-us