Jill FANSHAWE KATO (1943) Vessel

Public Auction Conditions of Sale

These are the terms and conditions (these “terms”), together with any notices or additional terms set out in the catalogue, that apply when you purchase Lots at Live Auctions hosted by the Auctioneer (all as defined below) and will form the basis of the contract you form with the Seller.  Please note that our online auction conditions of sale will apply when you place bids at our Online Auctions (defined below). 

These terms limit the extent of the Seller’s liability to you.  We recommend that you inspect the Lot before submitting a bid. 

Please note that if you register to bid on the Auctioneer’s Website, or a Third Party Platform, you agree to comply with these terms. 

These terms may change from time to time.  Every time you wish to place a bid at a Live Auction, please review these terms.  These terms were most recently updated on 1st September 2021. 

1. Interpretation
   • Definitions:

2. The Auctioneer’s role
   • We are appointed to act as the Seller’s agent and (unless otherwise stated) sell lots on behalf of the Seller. These terms, together with any notices and additional terms set out in the catalogue, shall form the basis the contract you form with the Seller. 
   • When we use the words "writing" or "written" in these terms, this includes emails.
     
     
3. Bidding Process
   • You agree:
     • to register as a user on the Auctioneer’s Website, or a Third Party Platform, before submitting any online bids at a Live Auction;
     • to register as a bidder with the Auctioneer before submitting any bids in person, by telephone or via a Commission Bid;
     • that you are at least 16 years old and are not bidding on behalf of a third party; and
     • that you are responsible for obtaining, at your own cost, such import licences and other consents in relation to the Lots as are required from time to time and, if required, those licences and consents shall be made available to us prior to collection.
   • You will be given the possibility to attend the Live Auction in person and may inspect the Lot to determine its actual state and condition before placing any bids.
   • You agree that you are purchasing the Lot solely as a result of your own inspection and on the basis of these terms and have not in reliance upon any advertisement, statement, representation or warranty (either written or oral or implied) made by or on behalf of the Seller or by or on behalf of the Auctioneer.
     
     
4. Contract Formation
   • The Auctioneer shall declare the Buyer of the Lot at the fall of the Auctioneer’s hammer. In the event that two bids are submitted at the same time, the Auctioneer shall have the sole discretion to decide and declare who is the Buyer of the Lot. 
   • The Auctioneer’s declaration of the Buyer, will take place at the fall of the Auctioneer’s hammer at which point a contract will come into existence between you and the Seller (“Contract for Sale”).
   • You may have different rights under these terms depending on whether you are a business or consumer. You are a consumer if you are an individual and are buying the Lot mainly for your personal use. You are a business if you are buying the Lot in the course of business.
   • If you are a business Bidder these terms constitute the entire agreement between you and the Seller. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by the Seller, or us (acting on the Seller’s behalf), which is not set out in these terms or the Written Description and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the contract.
   • You are responsible for obtaining, at your own cost, such import licences and other consents in relation to the Lot as are required from time to time and, if required, those licences and consents shall be made available to the Auctioneer prior to collection.
     
     
5. Title and Risk
   • The Lot will be your responsibility from the time of the fall of the Auctioneer’s hammer.
   • You will own the Lot once the Auctioneer has received:
     • in full and cleared sums, the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer; and
     • all information from you in accordance with clause 2.

6. Collecting the lot
   • The Buyer agrees that they are responsible for collecting the Lot (together with any costs associated with packing, handling, transporting, importing and exporting the Lot) from the Auctioneer’s premises.
   • We may need certain information from you so that we can release the Lots to you, for example, evidence of your identity, source of funds and import licences. We may contact you to ask for this information. If you do not give us this information within a reasonable time of asking for it, or if you give incomplete or incorrect information, we may either end the contract or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the Lots late, or not supplying the Lot, if this is caused by you not giving us, on the Seller’s behalf, the required information within a reasonable time.
   • Once the Auctioneer has received the Hammer Price, all other sums owed by you to the Seller and Auctioneer and has completed its enquiries relating to the source of funds, the Lot will be released for collection. If you do not pay us in accordance with clause 7, we will not release the Lots to you and we may also charge you interest on your overdue payments and storage costs.
   • The Buyer agrees to collect the Lot with the collection periods displayed on the Auctioneer’s Website. If you do not collect the Lot within the collection periods displayed on the Auctioneer’s Website, we may charge you for:
     • storage costs, in accordance with our standard rates from time to time in force (currently charged at a daily rate of £2 plus VAT per Lot, increasing to £10 per Lot plus VAT after 30 days); and
     • an administration fee (currently, £10 plus VAT), which you shall pay on demand.
       
       

7. Payment
   • The Hammer Price shall be confirmed by the Auctioneer at the fall of the Auctioneer’s Hammer and will be set out in the invoice issued to the Buyer [at the Live Auction]. You agree to pay the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer within one Business Day of the Auction Date. 
   • Time shall be of the essence for payment and you agree to pay the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer within one Business Day of the Auction Date.
   • We accept payment by debit, credit card or by bank transfer. You must pay the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer before we release the Lot to you.
   • We do not accept Cash. 
   • If you are a business customer you must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding.
   • Unless otherwise stated, all sums payable excludes amounts in respect of VAT, Goods and Services Tax or any other sales tax, which the Buyer shall additionally be liable to pay at the prevailing rate (if applicable).
     
     
8. Failure to make payments or collect
   • If you fail to pay the Hammer Price (and all other sums which are, or become, due) or fail to collect the Lot in accordance with clause 6, we may:
     • terminate the Contract for Sale with immediate effect;
     • sell the Lot on providing written notice to you. If you have paid all sums due in accordance with clause 1, you shall appoint the Auctioneer to act as your agent for the purpose of selling the Lot in accordance with the separate contract you form with the Auctioneer; 
     • notify the Auctioneer and the Auctioneer may refuse to allow you to participate in any future auctions hosted by it;
     • notify the Auctioneer and the Auctioneer may refuse to allow you to submit any other bids at any future auctions hosted by it;
     • notify the operator of the Third Party Platform;
     • take legal action against you for the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer;
     • retain possession of any other property sold to you by the Seller until the outstanding payments have been made; and
     • charge interest to you on the overdue amount at the rate of 3% a year above the base lending rate of Barclays Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.
   • If we sell the Lot at a subsequent auction in accordance with clause 1(b), we shall:
     • if you have not paid all sums due in accordance with clause 1, account to the Seller for the proceeds of sale and you shall remain liable for the any shortfall between the amount received and the Hammer Price and any costs and expenses associated with the sale;
     • if you have paid all sums due in accordance with clause 1, account to you for the proceeds of sale (after deducting all sums due to the Seller and the Auctioneer) within 30 days of receipt of the sale proceeds.
   • You agree to indemnify the Seller against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with the Auctioneer taking steps in accordance with this clause 8.
     
     
9. Consumer cancellation right

You shall have no right to cancel the Contract for Sale concluded at a Live Auction. 

10. Our rights to end the contract
    • We (acting on the Seller’s behalf) may terminate the Contract for Sale at any time by writing to you if:
      • you do not make any payment to us when it is due;
      • you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the Lots to you;
      • you do not, collect the Lots from us in accordance with clause 4.
    • If we end the contract in the situations set out in clause 1 we will refund any money you have paid in advance for Lots we have not provided but we may deduct or charge you reasonable compensation for the net costs we will incur as a result of your breaking the contract.
      
      
11. The Seller’s warranties
    • The Seller warrants that:
      • it is the owner of the Lot; and
      • it sell the Lots with full title guarantee free from all liens, charges, encumbrances and third party claims.
    • Subject to any notices or additional terms set out in the catalogue, the Lot shall correspond with the Written Description set out in the catalogue. The Buyer acknowledges and agrees that the Lot shall not correspond with any other information set out in the catalogue including Estimate. 
    • Unless the Seller is a trader and the Buyer is a consumer, it does not make any statement, promise, representation, assurance or warranty in relation to the Lot being of satisfactory quality or fit for purpose.
      
      
12. The Seller’s liability
    • Nothing in these terms shall limit or exclude the Seller’s liability for:
      • death or personal injury caused by the Seller’s negligence;
      • fraud or fraudulent misrepresentation;
      • breach of the conditions implied by section 12 of the Sale of Goods Act 1979; or
      • any matter in respect of which it would be unlawful for us to exclude or restrict liability (including the terms implied by the Consumer Rights Act 2015 which shall apply if the Seller is a trader and the Buyer is a consumer).
    • Subject to clause 1, if the Seller is not a trader or the Buyer is not a consumer:
      • the Seller shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract for Sale, including in connection with any description of the Lot whether made orally or in writing (excluding the Written Description);
      • the Seller’s total liability to you for all other losses arising under or in connection with the Contract for Sale, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the Hammer Price; and
      • all conditions implied by sections 13 to 15 of the Sale of Goods Act 1979 are excluded.

13. Communications
    • Any notice or other communication given under or in connection with these terms must be in writing and be delivered by hand, sent by pre-paid first class post or other next working day delivery service, or email. If the notice is to the Seller or the Auctioneer, it shall be addressed to c/o Lay’s Auctioneers Limited to the address specified in the catalogue and if to the Buyer, it shall be addressed to the Buyer at the address provided when registering to bid at the Live Auction. 
    • A notice or other communication is deemed to have been received if delivered by hand, at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or if sent by email, at 9.00 am the next working day after transmission.
    • In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
    • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
      
      
14. Miscellaneous
    • We (acting on the Seller’s behalf) will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract for Sale that is caused by any act or event beyond our reasonable control.
    • The Seller may transfer its rights and obligations under the Contract for Sale to another organisation.
    • You shall not transfer your rights or your obligations under the Contract for Sale to another person.  
    • The Contract for Sale between you and the Seller. No other person shall have any rights to enforce any of its terms.
    • Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
    • If the Seller does not insist immediately that you do anything you are required to do under these terms, or is delayed in taking steps against you in respect of your breaking the Contract for Sale, that will not mean that you do not have to do those things and it will not prevent the Seller from taking steps against you at a later date.
    • If you are a consumer, these terms are governed by English law and you can bring legal proceedings in the English courts. If you live in Scotland you can bring legal proceedings in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in either the Northern Irish or the English courts.
    • If you are a business, any dispute or claim arising out of or in connection with the Contract for Sale or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.

 Last updated: April 2023

(Timed) Online Auction Conditions of Sale

These are the terms and conditions (these “terms”), together with any notices or additional terms set out in the catalogue, that apply when you purchase Lots at Online Auctions hosted by the Auctioneer (all as defined below) and will form the basis of the contract you form with the Seller.  Please note that our public auction conditions of sale will apply when you place bids at our Live Auctions (defined below). 

Please note that if you register to bid on the Auctioneer’s Website, or a Third Party Platform, you agree to comply with these terms. 

These terms may change from time to time.  Every time you wish to place a bid at an Online Auction, please review these terms.  These terms were most recently updated on 1st September 2021. 

1. Interpretation
   • Definitions:

2. The Auctioneer’s role
   • We are appointed to act as the Seller’s agent and (unless otherwise stated) sell lots on behalf of the Seller. These terms, together with any notices and additional terms set out in the catalogue, shall form the basis the contract you form with the Seller. 
   • If the Seller is a trader (acting in the course of business), the catalogue will identify if the Seller is a trader.
   • When we use the words "writing" or "written" in these terms, this includes emails.
     
     
3. Bidding Process
   • You agree:
     • to register as a user on the Auctioneer’s Website, or a Third Party Platform, before submitting bids at an Online Auction;
     • that you are at least 16 years old and are not bidding on behalf of a third party; and
     • that you are responsible for obtaining, at your own cost, such import licences and other consents in relation to the Lots as are required from time to time and, if required, those licences and consents shall be made available to us prior to collection.
       
       

4. Contract Formation
   • Your bid shall constitute an offer to purchase the Lot for the price set out in the bid.
   • We shall declare the Buyer of the Lot at the close of the Online Auction. In the event that two bids are submitted at the same time, we shall have the sole discretion to decide and declare who is the Buyer of the Lot. 
   • Our acceptance of the highest bid, and declaration of the Buyer, will take place when we issue an invoice and covering email to the highest bidder (“Invoice”), at which point a contract will come into existence between you and the Seller (“Contract for Sale”).
   • The Invoice will confirm the Hammer Price (together with the buyer’s premium and any other sums due from you), a description of the Lot, the Auction Date and the collection periods for the Lot.
   • You may have different rights under these terms depending on whether you are a business or consumer. You are a consumer if you are an individual and are buying the Lot mainly for your personal use. You are a business if you are buying the Lot in the course of business.
   • If you are a business Bidder these terms constitute the entire agreement between you and the Seller. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by the Seller, or us (acting on the Seller’s behalf), which is not set out in these terms or the Written Description and that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the contract.
   • You are responsible for obtaining, at your own cost, such import licences and other consents in relation to the Lot as are required from time to time and, if required, those licences and consents shall be made available to the Auctioneer prior to collection.
     
     
5. Title and Risk
   • The Lot will be your responsibility from the time you collect the Lot from us, or 5 days after the Auction Date, whichever is earlier.
   • You will own the Lot once the Auctioneer has received:
     • in full and cleared sums, the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer; and
     • all information from you in accordance with clause 2.
       
       

6. Collecting the lot
   • The Buyer agrees that they are responsible for collecting the Lot (together with any costs associated with packing, handling, transporting, importing and exporting the Lot) from the Auctioneer’s premises.
   • We may need certain information from you so that we can release the Lots to you, for example, evidence of your identity, source of funds and import licences. We may contact you to ask for this information. If you do not give us this information within a reasonable time of asking for it, or if you give incomplete or incorrect information, we may either end the contract or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the Lots late, or not supplying the Lot, if this is caused by you not giving us, on the Seller’s behalf, the required information within a reasonable time.
   • Once the Auctioneer has received the Hammer Price, all other sums owed by you to the Seller and Auctioneer and has completed its enquiries relating to the source of funds, the Lot will be released for collection. If you do not pay us in accordance with clause 7, we will not release the Lots to you and we may also charge you interest on your overdue payments and storage costs.
   • The Buyer agrees to collect the Lot with the collection periods displayed on the Auctioneer’s Website. If you do not collect the Lot within the collection periods displayed on the Auctioneer’s Website, we may charge you for:
     • storage costs, in accordance with our standard rates from time to time in force (currently charged at a daily rate of £2 plus VAT per Lot); and
     • an administration fee (currently, £10 plus VAT),

which you shall pay on demand.

7. Payment
   • The Hammer Price shall be set out in the Invoice. You agree to pay the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer within one Business Day of the Auction Date. 
   • Time shall be of the essence for payment and you agree to pay the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer within one Business Day of the Auction Date.
   • We accept payment by debit, credit card or by bank transfer. You must pay the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer before we release the Lot to you. 
   • We do not accept Cash.
   • If you are a business customer you must pay all amounts due to us under these terms in full without any set-off, counterclaim, deduction or withholding.
   • Unless otherwise stated, all sums payable excludes amounts in respect of VAT, Goods and Services Tax or any other sales tax, which the Buyer shall additionally be liable to pay at the prevailing rate (if applicable).
     
     
8. Failure to make payments or collect
   • If you fail to pay the Hammer Price (and all other sums which are, or become, due) or fail to collect the Lot in accordance with clause 6, we may:
     • terminate the Contract for Sale with immediate effect;
     • sell the Lot on providing written notice to you. If you have paid all sums due in accordance with clause 1, you shall appoint the Auctioneer to act as your agent for the purpose of selling the Lot in accordance with the separate contract you form with the Auctioneer; 
     • notify the Auctioneer and the Auctioneer may refuse to allow you to participate in any future auctions hosted by it;
     • notify the Auctioneer and the Auctioneer may refuse to allow you to submit any other bids at any future auctions hosted by it;
     • notify the operator of the Third Party Platform;
     • take legal action against you for the Hammer Price and all other sums which are, or become, due from you to the Seller and the Auctioneer;
     • retain possession of any other property sold to you by the Seller until the outstanding payments have been made; and
     • charge interest to you on the overdue amount at the rate of 3% a year above the base lending rate of Barclays Bank plc from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.
   • If we sell the Lot at a subsequent auction in accordance with clause 1(b), we shall:
     • if you have not paid all sums due in accordance with clause 1, account to the Seller for the proceeds of sale and you shall remain liable for the any shortfall between the amount received and the Hammer Price and any costs and expenses associated with the sale;
     • if you have paid all sums due in accordance with clause 1, account to you for the proceeds of sale (after deducting all sums due to the Seller and the Auctioneer) within 30 days of receipt of the sale proceeds.
   • You agree to indemnify the Seller against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with the Auctioneer taking steps in accordance with this clause 8.
     
     
9. Consumer cancellation right
   • In accordance with the Consumer Contracts Regulations 2013, if you are a consumer and have bought the Lot at an Online Auction (where you have no possibility to attend in person) from a Seller (who is acting as a trader), you have a legal right to cancel the Contract for Sale within the period set out in clause 2 below. This means that if you change your mind or decide that you do not want the Lot you may cancel the Contract for Sale and receive a refund.
   • Your legal right to cancel the Contract for Sale starts from the date you receive the Invoice, which is when the Contract for Sale is formed. You have a period of 14 days after the day you (or someone nominated by you) collects the Lot from our premises. 
   • To end the Contract for Sale, you shall inform the Auctioneer (acting as the Seller’s agent) of your decision to cancel the Contract for Sale by doing one of the following:
     • emailing us at enquiries@davidlay.co.uk and providing details of you name, address, the Lot and the Auction Date;
     • completing the model cancellation form set out at Schedule 1; or
     • printing off the model cancellation form set out at Schedule 1 and posting it to us at the address on the form.
   • If you end the contract for any reason after Lots have been collected by you, you must return the Lots to us. You must either return the Lots in person, post them back to us or (if they are not suitable for posting) allow us to collect them from you within 14 days of communicating your decision to cancel the Contract for Sale.
   • You will be responsible for the direct cost of returning the Lot to us. The costs of collection may be the same as the costs you incurred in arranging delivery.  We are unable to provide you with an estimate of costs for collection due to the varying nature of the Lots sold at auctions. 
   • If you cancel the Contract for Sale, we (acting on the Seller’s behalf) will refund you the price you paid for the Lots including delivery costs paid to the Auctioneer, by the method you used for payment. However, we may make deductions from the price in accordance with clause 7.
   • If you are exercising your right to cancel the Contract for Sale we may reduce your refund of the price to reflect any reduction in the value of the Lots, if this has been caused by unnecessary handling by you.  
   • We will make any refunds due to you as soon as possible and within 14 days from the day on which we receive the Lots back from you or, if earlier, the day on which you provide us with evidence that you have sent the Lots back to us.
     
     
10. Our rights to end the contract
    • We (acting on the Seller’s behalf) may terminate the Contract for Sale at any time by writing to you if:
      • you do not make any payment to us when it is due;
      • you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the Lots to you;
      • you do not, collect the Lots from us in accordance with clause 4.
    • If we end the contract in the situations set out in clause 1 we will refund any money you have paid in advance for Lots we have not provided but we may deduct or charge you reasonable compensation for the net costs we will incur as a result of your breaking the contract.
      
      
11. The Seller’s warranties
    • The Seller warrants that:
      • it is the owner of the Lot; and
      • it sell the Lots with full title guarantee free from all liens, charges, encumbrances and third party claims.
    • Subject to any notices or additional terms set out in the catalogue, the Lot shall correspond with the Written Description set out in the catalogue. The Buyer acknowledges and agrees that the Lot shall not correspond with any other information set out in the catalogue including Estimate. 
    • Unless the Seller is a trader and the Buyer is a consumer, it does not make any statement, promise, representation, assurance or warranty in relation to the Lot being of satisfactory quality or fit for purpose.
      
      
12. The Seller’s liability
    • Nothing in these terms shall limit or exclude the Seller’s liability for:
      • death or personal injury caused by the Seller’s negligence;
      • fraud or fraudulent misrepresentation;
      • breach of the conditions implied by section 12 of the Sale of Goods Act 1979; or
      • any matter in respect of which it would be unlawful for us to exclude or restrict liability (including the terms implied by the Consumer Rights Act 2015 which shall apply if the Seller is a trader and the Buyer is a consumer).
    • Subject to clause 1, if the Seller is not a trader or the Buyer is not a consumer:
      • the Seller shall not be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract for Sale, including in connection with any description of the Lot whether made orally or in writing (excluding the Written Description);
      • the Seller’s total liability to you for all other losses arising under or in connection with the Contract for Sale, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the Hammer Price; and
      • all conditions implied by sections 13 to 15 of the Sale of Goods Act 1979 are excluded.
        
        

13. Communications
    • Any notice or other communication given under or in connection with these terms must be in writing and be delivered by hand, sent by pre-paid first class post or other next working day delivery service, or email. If the notice is to the Seller or the Auctioneer, it shall be addressed to c/o Lay’s Auctioneers Limited to the address specified in the catalogue and if to the Buyer, it shall be addressed to the Buyer at the address provided when registering as a user on the Auctioneer’s Website, or a Third Party Platform. 
    • A notice or other communication is deemed to have been received if delivered by hand, at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; or if sent by email, at 9.00 am the next working day after transmission.
    • In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
    • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
      
      
14. Miscellaneous
    • We (acting on the Seller’s behalf) will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract for Sale that is caused by any act or event beyond our reasonable control.
    • The Seller may transfer its rights and obligations under the Contract for Sale to another organisation.
    • You shall not transfer your rights or your obligations under the Contract for Sale to another person.  
    • The Contract for Sale between you and the Seller. No other person shall have any rights to enforce any of its terms.
    • Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
    • If the Seller does not insist immediately that you do anything you are required to do under these terms, or is delayed in taking steps against you in respect of your breaking the Contract for Sale, that will not mean that you do not have to do those things and it will not prevent the Seller from taking steps against you at a later date.
    • If you are a consumer, these terms are governed by English law and you can bring legal proceedings in the English courts. If you live in Scotland you can bring legal proceedings in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in either the Northern Irish or the English courts.

If you are a business, any dispute or claim arising out of or in connection with the Contract for Sale or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.

 Model Cancellation Form for consumer

(Complete and return this form only if you wish to withdraw from the contract)

To:       Lay’s Auctioneers Limited (trading as David Lay Auctions)

            The Penzance Auction House, Alverton, Penzance, Cornwall, TR18 4RE

Email:   enquiries@davidlay.co.uk

I/We [*] hereby give notice that I/We [*] cancel my/our [*] contract of sale of the following goods:

• [insert description]

Auction Date:

Bid accepted on [*]/received on [*]:

Name of consumer(s):

Address of consumer(s):

Signature of consumer(s) (only if this form is notified on paper),

Date:

[*] Delete as appropriate

 Last updated: April 2023

If you have a complaint, in the first instance please contact the office who will be able to give you details of our complaints handling procedure.

Buyers terms:

These terms and conditions (these “terms”), together with our privacy policy, apply when the Buyer purchases a Lot at an Auction hosted by the Auctioneer (all as defined below).

These terms, and our privacy policy, shall constitute the Buyer’s Contract with the Auctioneer, so please read them carefully before placing a bid.

INTERPRETATION

1.1 Definitions:

“Auction” a Live Auction or an Online Auction;

“Auction Date” the date on which the Auction takes place;

“Auctioneer” Lay’s Auctioneers Limited (trading as David Lay Auctions) registered with company number 11855371;

“Auctioneer’s Website” the Auctioneer’s website currently located at www.davidlay.co.uk, together with such other website which may be developed by the Auctioneer from time to time;

“Bidder” the person, firm, or company who submits bids at the Auction;

"Buyer" the Bidder who submits the highest bid accepted by the Auctioneer or the person who the Auctioneer declares as Buyer of the Lot;

"Buyer’s Premium" the amount payable by the Buyer to the Auctioneer which shall be calculated at the rate of 21% of the Hammer Price exclusive of VAT;

“Conditions of Sale” the Public Auction Conditions of Sale or the Online Auction Conditions of Sale;

“Estimate” the Auctioneer’s opinion of the possible Hammer Price;

“Hammer Price” the amount payable by the Buyer for the Lot;

“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Live Auction” a public auctions conducted by the Auctioneer where Bidders may inspect the Lots and place bids in person, online or via the telephone;

any item which is offered for sale at the Auction;

“Online Auction” a Timed Online Auction (External) or a Timed Online Auction (Internal);

"Lot" any item which is offered for sale at a Live Auction;

“Online Auction Conditions of Sale” the conditions of sale set out at Schedule 1.

“Public Auction Conditions of Sale” The public auction conditions of sale set out at Schedule 2;

"Seller" the person who offers the Lot for sale;
“Third Party Platform” the auction platform provided by a third party, on which the Bidder may place bids in relation to the Auction;

“Platform Surcharge” the third party internet live bidding fee of 4.95% (Saleroom.com) or 3% (Easy Live Auctions - Premium)  of the Hammer Price exclusive of VAT (payable when bids are placed through the Third Party Platform);

“Timed Online Auction (External)” online auctions conducted by the Auctioneer where Bidders may view the Lots on the Auctioneer’s Website and place bids via the Auctioneer’s Website; or the Third Party Platform;

“Timed Online Auction (Internal)” online auctions conducted by the Auctioneer where Bidders may view the Lots on the Auctioneer’s Website and place bids via the Auctioneer’s Website;

“Website Surcharge” the third party internet live bidding fee of 3% of the Hammer Price exclusive of VAT (payable when bids are placed through the Auctioneer’s Website);

1.2  A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3  A reference to a party includes its personal representatives, successors and permitted assigns.

1.4  The headings do not affect the interpretation of the Agreement.

1.5  Any reference to a party’s employees includes its agents and sub-contractors.

1.6  Where the context so requires the singular includes the plural and vice versa.

1.7  A reference to writing or written includes email.

2. BASIS OF CONTRACT

2.1  The Auctioneer sells each Lot as agent for the Seller (except where the Auctioneer is said to wholly or partly own any Lot as principal in the catalogue).

2.2  The contract for sale of the Lot between the Seller and the Buyer will be formed:

9.3.1 for Live Auctions, at the fall of the Auctioneer’s hammer in respect of the Lot and shall incorporate the Public Auction Conditions of Sale; and

9.3.1 for Online Auctions, when the Auctioneer issues an invoice by email to the Buyer and shall incorporate the Online Auction Conditions of Sale.

2.3  In the event that two bids are submitted at the same time (for example, an in person and online bid), the Auctioneer shall have the sole discretion to decide and declare who is the Buyer of the Lot.

2.4  At the time of the fall of the Auctioneer’s hammer in respect of the Lot, or the issue of an invoice by email to the Buyer, a separate contract will be formed between the Auctioneer and Buyer on these terms (“Contract”).

2.5  These terms apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6  No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding unless agreed in writing and signed by or on behalf of the Auctioneer.

3. CONDUCT AT THE AUCTION

3.1  The Bidder agrees to at all times comply with the Conditions of Sale which apply to the sale of the Lot.

3.2  The Bidder agrees that Online Auctions and the Auctioneer’s Website are provided without any warranties or guarantees. The Auctioneer does not guarantee that the Online Auction or the Auctioneer’s Website shall be uninterrupted and error-free.

4. DESCRIPTION, REPORT AND ESTIMATES

4.1  The Bidder acknowledges that the description of the Lot is provided by the Seller and agrees that the Auctioneer accepts no liability in respect of the description of the Lot.

4.2  The Bidder agrees that any condition reports are provided for information purposes only and are not intended to provide advice on which the Bidder should rely. The Bidder agrees to obtain professional or specialist advice before taking any action on the basis of the conditions report.

4.3  If the Auctioneer provides an Estimate, the Buyer agrees that they are an expression of the Auctioneer’s opinion of the likely Hammer Price which will be achieved by the Lot and is not an estimate of the value of the Lot.

5.RISK AND TITLE

5.1  Risk in the Lot shall pass to the Buyer:

(a)  in the case of Live Auctions, on the fall of the hammer; or

(b)  in the case of Online Auctions, when the Buyer collects the Lot or 10 days after the Auction Date, whichever is earlier.

5.2  The Auctioneer recommends that the Buyer takes out appropriate policies of insurance in respect of the Lot at the point at which risk passes in accordance with clause 5.1.

5.3  Title to the Lot shall not pass to the Buyer until the Auctioneer has received payment in full for the Lot and all other sums which are, or become, due from the Buyer to the Auctioneer and the Seller.

6. PAYMENT
6.1 Unless agreed otherwise in writing by the Auctioneer, the Buyer agrees to pay to the Auctioneer:

1. (a)  the Buyer’s Premium within one Business Day of the Auction Date;

2. (b)  if the Auction is a Timed Online Auction (External) or a Live Auction and the bid is placed through the Auctioneer’s Website, the Website Surcharge on the Auction Date;

3. (c)  if the Auction is a Timed Online Auction (External) or a Live Auction and the bid is placed through the Third Party Platform, the Platform Surcharge on the Auction Date;

4. (d)  the Hammer Price and all other sums which are, or become, due from the Buyer, to the Auctioneer in accordance with terms set out in the relevant Conditions of Sale; and

5. (e)  any additional amounts due in accordance with clause 11.

6.2  Unless otherwise stated, all sums payable excludes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being.

6.3   If the Buyer fails to pay the Auctioneer in accordance with clause 6.1, the Auctioneer may share this information with the operator of the Third Party Platform and the Auctioneer may obtain payment from the Buyer via the Third Party Platform.

6.4  If the Hammer Price is €10,000 or over, the Buyer shall provide the Auctioneer with copies of its identification documents for the purpose of performing anti-money laundering checks.

7. COLLECTION

7.1   Subject to clause 5.3 and 6.4, the Buyer agrees to collect the Lot from the Auctioneer in accordance with the terms set out in the relevant Conditions of Sale. The Buyer acknowledges and agrees that the Auctioneer may refuse to release the Lot to the Buyer in the event that the Auctioneer has not received payment in full for the Lot and all other sums which are due from the Buyer.

7.2  If requested in writing, the Auctioneer may arrange delivery on the Buyer’s behalf with the Royal Mail Group Limited. The Buyer will form a separate contract with the Royal Mail Group Limited over which the Auctioneer has no control. The Royal Mail Group Limited does not accept delivery of the following items https://www.parcelforce.com/help-and-advice/sending/prohibitions-and-restrictions.

7.3  In the event that the Lot is not collected in accordance with the relevant Conditions of Sale, the Buyer agrees to pay the storage charges set out in the Conditions of Sale.

7.4  If the Buyer has not collected in accordance with the relevant Conditions of Sale and has paid all sums due in accordance with clause 6.1, the Buyer shall appoint the Auctioneer to act as its agent for the purpose of selling the Lot and the Auctioneer shall account to the Buyer in respect of the proceeds of the sale (after deducting all sums due to the Seller and the Auctioneer) within 30 days of receipt of the sale proceeds.

8. FORGERIES AND INFRINGEMENTS

8.1  If the Buyer (acting in good faith) considers the Lots to be forgeries or an infringement of the third party Intellectual Property Rights and within 14 days after the date the Contract is formed serves a notice in writing on the Auctioneer stating that the Lot is forgery or infringes third party Intellectual Property Rights and within 21 days after serving such notice:

(a)  returns the Lot to the Auctioneer in the same condition as at the date the Contract is formed;

(b)  produces evidence (the burden of proof to be upon the Buyer) that, in light of the entry in the catalogue, the Lot is a forgery or infringes third party Intellectual Property Rights; and

(c)  is able to transfer the title the Buyer received in respect of the Lot, then, if (in the Auctioneer’s sole opinion) the Auctioneer considers the Lot to be a forgery or an infringement of third party Intellectual Property Right, the Contract will be terminated and all sums payable by the Buyer will be refunded to the Buyer within a reasonable time.

8.2  The Buyer agrees to be bound by the Auctioneers’ decision and when deciding whether or not the Lot is forgery, the Auctioneer shall be entitled to seek the views of an expert.

8.3  The Buyer agrees to provide the Auctioneer with all reasonable assistance that may be required by the Auctioneer in relation to any third party claim, or notice of any third party claim, that is issued against the Auctioneer.

9. DATA PROTECTION

The Auctioneer will collect and process information relating to Bidders and Buyers in accordance with the privacy policy which is displayed on the Auctioneer’s Website.

10. LIMITATION OF LIABILITY

10.1  Subject to clause 4, the following provisions set out the Auctioneer’s entire liability (including any liability for the acts or omissions of its employees) to the Buyer in respect of any breach of the Contract and any representation, statement or tortious act or omission (including negligence) arising out of or in connection with the Contract.

10.2  Nothing in these terms excludes or limits the Auctioneer’s liability for death or personal injury caused by the Auctioneer’s negligence, fraud or fraudulent misrepresentation or any matter in respect of which it would be unlawful to exclude or restrict liability.

10.3  Subject to clause 10.2:

(a)  the Auctioneer shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b)  Unless you are a consumer, the Auctioneer’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Buyer’s Premium.

10.4  The Auctioneers accept no responsibility in connection with the commissioning of its staff to bid, on behalf of Bidders, for any Lots. Bids given by telephone are accepted at Bidder’s risk.

10.5  Every person attending the Auction at the Auctioneers’ premises before, during or after the sale shall be deemed to be there at their own risk.

10.6  If the Auction is a Live Auctions, the Buyer agrees that they have:

(a)  inspected the Lot and purchased it with full knowledge of its actual state and condition; and

(b)  purchased the Lot solely as a result of its own inspection and on the basis of these terms and not in reliance upon any advertisement, statement, representation or warranty (either written or oral or implied) made by or on behalf of the Seller or by or on behalf of the Auctioneer.

11. ARTISTS RESALE RIGHTS

11.1  If the Artist’s Resale Right Regulations 2006 apply to the Lot, the Buyer also agrees to pay to the Auctioneer an amount equal to the resale royalty provided for in those Regulations (“ARR Amount”) and the Auctioneer undertakes to the Buyer to pay such amount to the artist’s collection agent.

11.2  The ARR Amount shall be a percentage of the Hammer Price calculated as follows, provided that the Hammer Price is €1,000 or greater:

Hammer Price

Percentage Amount

0 to €50,000                                    4%
€50,000.01 to €200,000                  3%

€200,000.01 to €350,000                1%

€350,000.01 to €500,000              0.5%

excess of €500,000                     0.25%

12. MISCELLANEOUS PROVISIONS
    Clauses 5, 6, 7, 13 and 14 of the Conditions of Sale shall apply to this Contract.

13. ENTIRE AGREEMENT

13.1  The Contract constitutes the whole agreement between the Auctioneer and Buyer and supersedes

all previous agreements between the Auctioneer and Buyer relating to its subject matter.

13.2  The Auctioneer and Buyer acknowledges that, in entering into the Contract, they have not relied on, and shall have no right or remedy (other than for breach of contract) in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in these terms.

 Last updated: August 2023