Chris SMITH (1950) Gwithian Dusk

Buyer's 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;

 “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 3% (Saleroom.com) 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 inspect the Lots in person 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)  inthecaseofOnlineAuctions,whentheBuyercollectstheLotor10daysaftertheAuction 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:

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

1. (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;

2. (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;

3. (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

4. (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)  returnstheLottotheAuctioneerinthesameconditionasatthedatetheContractisformed;

  (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 area consumer,theAuctioneer’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 

 €1000 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%

 MISCELLANEOUS PROVISIONS

12. 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: April 2023

For full conditions of business see here