Given past articles discussing Terms and Conditions of auction houses and/or auction events (see “Auction House Buying Considerations, Part I: Overview“, “…Part II: Chandelier Bid Legislation“, “…Part III: Bonhams“), I thought it might be worthwhile to highlight and comment on the terms for the upcoming Guernsey’s Pugliese Prop Culture Collection auction, to be held at the Palm in Las Vegas March 15-16, 2008.
Here are key excerpts from the Terms and Conditions from the live auction listings (at LiveAuctioneers.com):
This catalogue, as amended by any posted notices during the sale, together with the purchaser’s registration statement, is Guernsey’s and the Consigner’s entire agreement with the purchaser relative to the property listed herein. The following conditions of sale are the only terms and conditions by which all properties are offered for sale. The property will be offered by us as the agent for the Consigner unless the catalogue indicates otherwise. By bidding at auction, whether present in person or by agent, by written bid, telephone, internet or by other means, the buyer agrees to be bound by these Conditions of Sale.
Comment: One interesting point in this opening section is the statement that Guernsey’s is “the agent for the Consigner”, which is different from some of the other terms I have reviewed with other auction houses. However, in this case, the consignor is part of the marketing and “story” of the event.
1. All properties are sold as is, and neither we nor the Consigner make any warranties or representations with respect to any lot sold including but not limited to the correctness of the catalogue or other description of the origin, physical condition, size, quality, rarity, attribution, authorship, importance, medium, provenance, exhibitions, literature or historical relevance of the property, and no statement anywhere, whether oral or written, shall be deemed such a warranty or representation. All sizes listed are approximate and listed in inches, unless otherwise specified. Prospective bidders should inspect the property before bidding to determine its condition, size, and whether or not it has been repaired or restored. WE AND THE CONSIGNOR DISCLAIM ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO WARRANTIES ARE MADE THAT ANY OF THE MERCHANDISE COMPLIES WITH ANY APPLICABLE GOVERNMENTAL RULES, REGULATIONS OR ORDINANCES OF ANY KIND OR NATURE WHATSOEVER. Neither Guernsey’s as agent nor the Consigner is responsible for any faults or defects in any lot or the correctness of any statement as to the authorship of any origin, authorship, date, age, attribution, genuineness, provenance or condition of any lot.
Comment: As with most auction houses, the “sold as is” is a foundational element of the terms of sale. This entire section is truly the norm with auction house events, and is also typically not reviewed or considered by more casual collectors. Guernsey’s and the consignor do not “make any warranties or representations with respect to any lot sold including… correctness of the catalogue or other description of the origin… rarity, attribution… importance… provenance”.
As a point of comparison, here is the first paragraph of Section 10 from the latest Profiles in History catalog for their Hollywood Auction 31:
Profiles does not provide any warranties to biders or Buyers, whether expres or implied, beyond those expresly provided for in these Conditions of sale. All property and lots are sold “as is” and “where is”. By way of ilustration rather than limitation , neither Profiles nor the consignor makes any representation or warranty , expresed or implied, as to merchantability or fitnes for intended use, condition of the property (including any condition report ), correctnes of description, origin, measurement, quality , rarity, importance , exhibition, relevance , attribution , source, provenance , date , authorship , condition, culture, genuinenes, value , or period of the property . Additionaly , neither Profiles nor the consigner makes any representation or warranty , expres or implied, as to whether the Buyer ac quires rights in copyright or other intelectual property (including exhibition or reproduction rights) or whether the property is subject to any limitations such as ‘droit morale’ (moral rights) or other rights afecting works of art . profiles does not make any representation or warranty as to title.
Obviously, these policies are very consistent with one another.
Getting back to the Guernsey’s terms specifically:
2. A buyer’s premium of 22.5% will be added to the purchase of all lots in the sale. This premium is payable by the purchaser as part of the total purchase price. Guernsey’s also receives a commission directly from the Consigner.
Comment: The buyer’s premium is higher than some of the other auction houses (as an example, Profiles premium ranges from 15%-20%, depending on bidding (online, phone/absentee, or in person) and payment method).
7. We reserve the right to reject any bid. The highest bidder, acknowledged by the auctioneer, will be the purchaser. In the event of a dispute between bidders, or in the event of doubt on our part as to the validity of any bid, the auctioneer will have the final discretion whether to determine the successful bidder or to re-offer and resell the article in dispute. If any dispute arises after the sale, our sale records are conclusive. Although in our discretion, we will execute other order bids or accept telephone bids as a convenience to clients who are not present at auctions, we are not responsible for any errors or omissions in connection therewith.
Comment: There can be an advantage to bidding live and in person.
8. If the auctioneer decides that any opening bid is below the value of the article offered, he or she may reject the same and withdraw the article from sale, and if having acknowledged on opening bid, he or she decides that any advance thereafter is insufficient, he or she may reject the advance.
Comment: This is interesting in that a collector can bid the opening amount and potentially not win the item.
9. Lots may be offered subject to a reserve, which is the confidential minimum price below such a lot will not be sold. We may implement such reserves by bidding on behalf of the Consignor. In certain instances the Consignor may pay us less than the standard commission rate where a lot is “bought in” to protect its reserve. Where the Consignor is indebted to us or has a monetary guarantee from us, and in certain other instances where we or any affiliated companies may have an interest in the offered lots and the proceeds there from other than our commission, we may bid therefore to protect such interests. Guernsey’s may act to protect the reserve by bidding through the auctioneer. The auctioneer may open bidding on any lot below the reserve by placing a bid on behalf of the seller. The auctioneer may continue to bid on behalf of the seller up to the amount of the reserve either by placing consecutive bids or by placing bids in response to other bidders
Comment: This policy allows the auction house to bid on items offered at the event on behalf of the seller/consignor. One of my previous articles is relevant to this – see “Auction House Buying Considerations, Part II: Chandelier Bid Legislation“. This article discusses legislation introduced in both houses of the New York State Legislature to prohibit “sham” or “chandelier” bids from the auction house unless such bids are designated as “for the consignor”. While Guernsey’s is a New York auction house, this sale is taking place in Las Vegas.
15. Should any disputes arise pertaining to purchases at this auction or any other matters relating to the auction, such disputes shall be brought in the courts of the State of New York. Venue shall be within the County of New York.
16. Any claim regarding a purchase must be made by the successful bidder to Guernsey’s, in writing, certified mail, return receipt requested, within 90 days of the final day of the live auction. Thereafter, all claims shall be time-barred.
Comment: The reference to “claim[s]” does not include specificity or details as to the type of claim, but in any event, such claims are limited to a 90 day window from the last day of the event.
Overall, I would just caution hobbyists to research any item that is of interest to them prior to the event, to ensure provenance and authenticity, and to generally be familiar with the full Terms and Conditions and any related concerns, issues, and potential consequences.
Jason De Bord
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More Guernsey’s “Pugliese Collection” OPB Reports:
”Guernsey’s Auction: “The Pugliese Collection“
“Guernsey’s Auction: “The Pugliese Collection” – Delayed to Early Next Year“
“Guernsey’s Pugliese Pop Culture Collection Auction: Las Vegas, NV – March 15-16, 2008“
“Guernsey’s Pugliese Pop Culture Collection Auction: Full Catalog Online”
“Statement from Guernsey’s Regarding Pugliese Collection Auction Event”
“Guernsey’s Pugliese Pop Culture Collection Auction: Lot Sale History Online”
“Guernsey’s Pugliese Pop Culture Collection Auction: Hardcopy Catalogs Out”
“Guernsey’s Pugliese Pop Culture Collection Auction: Featured on the Today Show”
“Guernsey’s Pugliese Pop Culture Collection Auction: HD Images from Today Show Feature“