These Conditions of Sale set out the terms on which we offer the lots listed in this catalogue for sale. By registering to bid and/or by bidding at auction you agree to these terms, so you should read them carefully before doing so.
A • BEFORE THE SALE
1 • DESCRIPTION OF LOTS
Our description of any lot in the catalogue and any other statement made by us (whether orally or in writing) about any lot, including about its nature or condition, artist, period, materials, approximate dimensions, or provenance are our opinion and not to be relied upon as a statement of fact. We do not carry out in-depth research of the sort carried out by professional historians and scholars. All dimensions and weights are approximate only.
2 • OUR RESPONSIBILITY FOR OUR DESCRIPTION OF LOTS
We do not provide any guarantee in relation to the nature of a lot apart from our authenticity warranty contained in paragraph E2 and to the extent provided in paragraph I below.
3 • CONDITION
(a) The condition of lots sold in our auctions can vary widely due to factors such as age, previous damage, restoration, repair and wear and tear. Their nature means that they will rarely be in perfect condition. Lots are sold “as is,” in the condition they are in at the time of the sale, without any representation or warranty or assumption of liability of any kind as to condition by Ghorbany or by the seller.
(b) Any reference to condition in a catalogue entry will not amount to a full description of condition, and images may not show a lot clearly. Colours and shades may look different in print or on screen to how they look on physical inspection. We therefore suggest that you examine a lot in person or seek your own professional advice
4 • VIEWING LOTS PRE-AUCTION
(a) If you are planning to bid on a lot, you should inspect it personally or through a knowledgeable representative before you make a bid to make sure that you accept the description and its condition. We recommend you get your own advice from a restorer or other professional adviser.
(b) Pre-auction viewings are open to the public free of charge. Our specialists may be available to answer questions at pre-auction viewings or by appointment.
5 • ESTIMATES
Estimates are based on the condition, rarity, quality, and provenance of the lots and on prices recently paid at auction for similar property. Estimates can change. Neither you, nor anyone else, may rely on any estimates as a prediction or guarantee of the actual selling price of a lot or its value for any other purpose. Estimates do not include the buyer’s premium or any applicable taxes.
6 • WITHDRAWAL
Ghorbany may, at its option, withdraw any lot from auction at any time prior to or during the sale of the lot. Ghorbany has no liability to you for any decision to withdraw.
B • REGISTERING TO BID
If this is your first time bidding you must register at least 48 hours before an auction begins to give us enough time to process your registration. You can register here.
C • CONDUCTING THE SALE
1 • RESERVES
Unless otherwise indicated, all lots are subject to a reserve. The reserve cannot be more than the lot’s low estimate.
2 • BIDDING
Bidding will start at the advertised auction time. Bidding starts from the Start Price as indicated and increases in steps (bid increments). Each lot closes on the Closing Time as indicated, from the first to the last lot. The Closing Time for lots may be extended at the discretion of the auctioneer. The last bid before closing is the winning bid.
3 • CURRENCY
The bidding in our auctions will all be in South African Rand (ZAR).
4 • SUCCESSFUL BIDS
As mentioned in Point 2 above, the highest unopposed bid is the winning bid. This means a contract for sale has been formed between the seller and the successful bidder. We will issue an invoice only to the registered bidder who made the successful bid. We will send out invoices by email after the auction.
D • THE BUYER’S PREMIUM AND TAXES
1 • THE BUYER’S PREMIUM
In addition to the winning bid price, the successful bidder agrees to pay us a buyer’s premium on the winning bid price of each lot sold. On all lots we charge a 20% buyer's premium of the winning bid.
2 • TAXES
The successful bidder is responsible for paying 15% VAT on the buyer's premium per lot won.
E • WARRANTIES
1 • SELLER’S WARRANTIES
(a) For each lot, the seller gives a warranty that the seller is the legal owner of the lot.
(b) If the above warranty is incorrect, the seller shall not have to pay more than the purchase price (as defined in paragraph F1(a) below) paid by you to us. The seller will not be responsible to you for any reason for loss of profits or business, expected savings, loss of opportunity or interest, costs, damages, other damage or expenses.
The seller gives no warranty in relation to any lot other than as set out above and, as far as the seller is allowed by law, all warranties from the seller to you, and all other obligations upon the seller which may be added to this agreement by law, are excluded.
2 • OUR AUTHENTICITY WARRANTY
We warrant, subject to the terms below, that the lots in our sales are authentic (our “authenticity warranty”). If, within 1 month of the date of the auction, you give notice to us that your lot is not authentic, subject to the terms below, we will refund the purchase price paid by you. The meaning of authentic can be found in the glossary at the end of these Conditions of Sale. The terms of the authenticity warranty are as follows:
(a) It will be honored for claims notified within a period of 1 month from the date of the auction. After such time, we will not be obligated to honor the authenticity warranty.
(b) It is given only for information shown in UPPERCASE type in the first line of the catalogue description (the “Heading”). It does not apply to any information other than in the Heading even if shown in UPPERCASE type.
(c) The authenticity warranty does not apply to any Heading or part of a Heading which is qualified. Qualified means limited by a clarification in a lot’s catalogue. For example, use of the term “ATTRIBUTED TO…” in a Heading means that the lot is in Ghorbany’s opinion probably a work by the named artist but no warranty is provided that the lot is the work of the named artist. Please read a lot’s full catalogue description before bidding.
(d) The authenticity warranty does not apply where scholarship has developed since the auction leading to a change in generally accepted opinion. Further, it does not apply if the Heading either matched the generally accepted opinion of experts at the date of the auction or drew attention to any conflict of opinion.
(e) The authenticity warranty does not apply if the lot can only be shown not to be authentic by a scientific process which, on the date we published the catalogue, was not available or generally accepted for use, or which was unreasonably expensive or impractical, or which was likely to have damaged the lot.
(f) The benefit of the authenticity warranty is only available to the original buyer shown on the invoice for the lot issued at the time of the sale and only if on the date of the notice of claim, the original buyer is the full owner of the lot and the lot is free from any claim, interest or restriction by anyone else. The benefit of this authenticity warranty may not be transferred to anyone else.
(g) In order to claim under the authenticity warranty you must:
(h) give us written notice of your claim within 1 month of the date of the auction. We may require full details and supporting evidence of any such claim:
(ii) at Ghorbany’s option, we may require you to provide the written opinions of two recognised experts in the field of the lot mutually agreed by you and us in advance confirming that the lot is not authentic. If we have any doubts, we reserve the right to obtain additional opinions at our expense; and
(iii) return the lot at your expense to the saleroom from which you bought it in the condition it was in at the time of sale.
(iii) Your only right under this authenticity warranty is to cancel the sale and receive a refund of the purchase price paid by you to us. We will not, under any circumstances, be required to pay you more than the purchase price nor will we be liable for any loss of profits or business, loss of opportunity or value, expected savings or interest, costs, damages, other damages or expenses.
3 • NO IMPLIED WARRANTIES EXCEPT AS SET FORTH IN PARAGRAPHS E1 AND E2 ABOVE, NEITHER THE SELLER NOR GHORBANY MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LOT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS SPECIFICALLY DISCLAIMED.
4 • YOUR WARRANTIES
You warrant that the funds used for settlement are not connected with any criminal activity, including tax evasion, and you are neither under investigation, nor have you been charged with or convicted of money laundering, terrorist activities or other crimes.
F • PAYMENT
1 • HOW TO PAY
(a) Immediately following the auction, you must pay the purchase price being:
Payment is due no later than by the end of the 7th calendar day following the date of the auction (the “due date”).
(b) We will only accept payment from the registered bidder. Once issued, we cannot change the buyer’s name on an invoice or re-issue the invoice in a different name. You must pay immediately even if you want to export the lot and you need an export licence.
(c) You must pay for lots bought at Ghorbany in South African Rand in one of the following ways:
(i) EFT to:
Bank: First National Bank
Account name: Ghorbany
Account number: 59251146874
Branch: Benmore Gardens, 251255
Ref: Your bidding number & Lot number as indicated on your invoice
(ii) Credit Card. We accept all major credit cards. Credit Card payments can be made at: Ghorbany Benmore, Shop G47, Benmore Gardens Shopping Centre, cnr Grayston Drive & Benmore Road, Benmore Gardens, Sandton, Johannesburg, Gauteng, South Africa.
2 • TRANSFERRING OWNERSHIP TO YOU
You will not own the lot and ownership of the lot will not pass to you until we have received full and clear payment of the purchase price on the invoice.
3 • TRANSFERRING RISK TO YOU
The risk in and responsibility for the lot will transfer to you from whichever is the earlier of the following:
(a) When you collect the lot; or
(b) At the end of the 30th day following the date of the auction or, if earlier, the date the lot is taken into care by a third party we have agreed with you.
4 • WHAT HAPPENS IF YOU DO NOT PAY
(a) If you fail to pay us the purchase price in full by the due date, we will be entitled to do one or more of the following (as well as enforce our rights under paragraph F5 and any other rights or remedies we have by law):
(i) we can cancel the sale of the lot. If we do this, we may sell the lot again, publically or privately on such terms we shall think necessary or appropriate.
(ii) we can hold you legally responsible for the purchase price and may begin legal proceedings to recover it together with other losses, interest, legal fees and costs as far as we are allowed by law;
(iii) we can take what you owe us from any amounts which we may owe you (including any deposit or other part-payment which you have paid to us);
(iv) we can, at our option, reveal your identity and contact details to the seller;
(v) we can reject at any future auction any bids made by or on behalf of the buyer;
(vi)we can exercise all the rights and remedies of a person holding security over any property in our possession owned by you, whether by way of pledge, security interest or in any other way as permitted by the law of the place where such property is located. You will be deemed to have granted such security to us and we may retain such property as collateral security for your obligations to us; and
(vii) we can take any other action we see necessary or appropriate.
(b) If you owe money to us we can use any amount you do pay, including any deposit or other part-payment you have made to us, or which we owe you, to pay off any amount you owe to us for any transaction.
5 • KEEPING YOUR PROPERTY
If you owe money to us, as well as the rights set out in F4 above, we can use or deal with any of your property we hold in any way we are allowed to by law. We will only release your property to you after you pay us in full for what you owe. However, if we choose, we can also sell your property in any way we think appropriate. We will use the proceeds of the sale against any amounts you owe us and we will pay any amount left from that sale to you. If there is a shortfall, you must pay us any difference between the amount we have received from the sale and the amount you owe us.G • COLLECTION AND STORAGE
(a) You must collect purchased lots within seven days from the auction (but note that lots will not be released to you until you have made full and clear payment of all amounts due to us).
(b) The address to collect lots is: Ghorbany Benmore, Shop G47, Benmore Gardens Shopping Centre, cnr Grayston Drive & Benmore Road, Benmore Gardens, Sandton, Johannesburg, Gauteng, South Africa.
(c) If you do not collect any lot within thirty days following the auction we may, at our option
(i) charge you storage costs; or
(ii) move the lot to a third party warehouse and charge you transport costs and administration fees for doing so and you will be subject to the third party storage warehouse’s standard terms and to pay for their standard fees and costs; or
(iii) sell the lot in any commercially reasonable way we think appropriate.
H • TRANSPORT AND SHIPPING
1 • SHIPPING
We would be happy to assist in making shipping arrangements on request. You must make all transport and shipping arrangements. However, we can arrange to pack, transport, and ship your property if you ask us to and pay the costs of doing so. We recommend that you ask us for an estimate, especially for any large items or items of high value that need professional packing. We may also suggest other handlers, packers, transporters, or experts if you ask us to do so. For more information, please contact Shervin Ghorbany on +27117065121 or +27824548533. We will take reasonable care when we are handling, packing, transporting, and shipping an item. However, if we recommend another company for any of these purposes, we are not responsible for their acts, failure to act, or neglect.
2 • EXPORT AND IMPORT
Any lot sold at auction may be affected by laws on exports from the country in which it is sold and the import restrictions of other countries. Many countries require a declaration of export for property leaving the country and/or an import declaration on entry of property into the country. Local laws may prevent you from importing a lot or may prevent you selling a lot in the country you import it into.
(a) You alone are responsible for getting advice about and meeting the requirements of any laws or regulations which apply to exporting or importing any lot prior to bidding. If you are refused a licence or there is a delay in getting one, you must still pay us in full for the lot.
(b) You alone are responsible for any applicable taxes, tariffs or other government-imposed charges relating to the export or import of the lot.
I • OUR LIABILITY TO YOU
(a) We give no warranty in relation to any statement made, or information given, by us or our representatives or employees, about any lot other than as set out in the written authenticity warranty and, as far as we are allowed by law, all warranties and other terms which may be added to this agreement by law are excluded. The seller’s warranties contained in paragraph E1 are their own and we do not have any liability to you in relation to those warranties.
(b) (i) We are not responsible to you for any reason (whether for breaking this agreement or any other matter relating to your purchase of, or bid for, any lot) other than in the event of fraud or fraudulent misrepresentation by us or other than as expressly set out in these conditions of sale; or
(ii) give any representation, warranty or guarantee or assume any liability of any kind in respect of any lot with regard to merchantability, fitness for a particular purpose, description, size, quality, condition, attribution, authenticity, rarity, importance, medium, provenance, exhibition history, literature, or historical relevance. Except as required by local law, any warranty of any kind is excluded by this paragraph.
(c) If, in spite of the terms in paragraphs I(a) to (d) or E2(i) above, we are found to be liable to you for any reason, we shall not have to pay more than the purchase price paid by you to us. We will not be responsible to you for any reason for loss of profits or business, loss of opportunity or value, expected savings or interest, costs, damages, or expenses
J • OTHER TERMS
1 • OUR ABILITY TO CANCEL
In addition to the other rights of cancellation contained in this agreement, we can cancel a sale of a lot if :
- any of your warranties in paragraph E3 are not correct;
- we reasonably believe that completing the transaction is, or may be, unlawful; or
- we reasonably believe that the sale places us or the seller under any liability to anyone else or may damage our reputation.
2 • COPYRIGHT
We own the copyright in all images, illustrations and written material produced by or for us relating to a lot(including the contents of our catalogues unless otherwise noted in the catalogue). You cannot use them without our prior written permission. We do not offer any guarantee that you will gain any copyright or other reproduction rights to the lot.
3 • ENFORCING THIS AGREEMENT
If a court finds that any part of this agreement is not valid or is illegal or impossible to enforce, that part of the agreement will be treated as being deleted and the rest of this agreement will not be affected.
4 • TRANSFERRING YOUR RIGHTS AND RESPONSIBILITIES
You may not grant a security over or transfer your rights or responsibilities under these terms on the contract of sale with the buyer unless we have given our written permission. This agreement will be binding on your successors or estate and anyone who takes over your rights and responsibilities .
5 • PERSONAL INFORMATION
6 • WAIVER
No failure or delay to exercise any right or remedy provided under these Conditions of Sale shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
K • GLOSSARY
authentic: a genuine example, rather than a copy or forgery of:
- the work of a particular artist, author or manufacturer, if the lot is described in the Heading as the work of that artist, author or manufacturer;
- a work created within a particular period or culture, if the lot is described in the Heading as a work created during that period or culture;
- a work for a particular origin source if the lot is described in the Heading as being of that origin or source; or (iv) in the case of gems, a work which is made of a particular material, if the lot is described in the Heading as being made of that material
authenticity warranty: the guarantee we give in this agreement that a lot is authentic as set out in paragraph E2 of this agreement.
buyer’s premium: the charge the buyer pays us along with the hammer price.
catalogue description: the description of a lot in the catalogue for the auction, as amended by any saleroom notice.
Ghorbany: Tehran Carpets CC t/a Ghorbany.
condition: the physical condition of a lot.
due date: has the meaning given to it paragraph F1(a).
estimate: the price range included in the catalogue or any saleroom notice within which we believe a lot may sell. Low estimate means the lower figure in the range and high estimate means the higher figure.
hammer price: the amount of the highest bid the auctioneer accepts for the sale of a lot.
heading: has the meaning given to it in paragraph E2.
lot: an item to be offered at auction (or two or more items to be offered at auction as a group).
other damages: any special, consequential, incidental or indirect damages of any kind or any damages which fall within the meaning of ‘special’, ‘incidental’ or ‘consequential’ under local law.
purchase price: has the meaning given to it in paragraph F1(a).
provenance: the ownership history of a lot.
qualified: has the meaning given to it in paragraph E2 and Qualified Headings means the paragraph headed Qualified Headings on the page of the catalogue headed ‘Important Notices and Explanation of Cataloguing Practice’.
reserve: the confidential amount below which we will not sell a lot.
subheading: has the meaning given to it in paragraph E2.
UPPER CASE type: means having all capital letters.
warranty: a statement or representation in which the person making it guarantees that the facts set out in it are correct.