TERMS AND CONDITIONS OF BUSINESS AND RULES OF AUCTION
THIS AGREEMENT COMPLIES WITH THE PROVISIONS OF SECTION 45 OF THE CONSUMER
PROTECTION ACT 68 OF 2008
1.1. The following terms shall have the meanings assigned to them hereunder and
cognate expressions shall have corresponding meanings:
1.1.1. "Act" means the Consumer Protection Act No. 68 of 2008 ("CPA")
as read with the Regulations promulgated thereunder in the
Government Gazette No. 34180 on 1 April 2011;
1.1.2. "Artistic work" means:
22.214.171.124. any drawing, picture, painting, collage, sculpture,
ceramic, print, engraving, lithograph, screen print,
etching, monotype, photograph, digitally printed
photograph, video, DVD, digital artwork, installation,
artist's book, tapestry, artist designed carpet,
performative artwork and any medium recognised as
such in the future;
126.96.36.199. any work of craftsmanship and/or artwork which does
not fall under 188.8.131.52 as set out in the Copyright Act No.
78 of 1978.
1.1.3. "Aspire" means Aspire Art Auctions (Pty) Ltd (Registration No.
2016/074025/07) incorporated under the laws of South Africa with
Principal place of business at: Illovo Edge, Building 3, Ground Floor,
5 Harries Road, Illovo, 2196 and 2nd Floor New Media House, 19
Bree Street, Cape Town;
1.1.4. "Auction" means any sale whereby a Lot is put up for sale by public
auction and auctioned off by Ruarc Peffers on behalf of Aspire or
such other auctioneer employed by Aspire from time to time;
1.1.5. "Auctioneer" means Ruarc Peffers or such other representative of
Aspire conducting the Auction who warrant these Rules of Auction
comply with the Act;
1.1.6. "Bidder" means any person who makes an offer to buy a particular
Lot and includes the Buyer of any such Lot. A bid shall be made by a
person registered to bid and in possession of an Aspire issued and
numbered bidders paddle raising that paddle or indicating a bid in
any way meant to be understood that way by the Auctioneer;
1.1.7. "Buyer" means any Bidder who makes a bid or offer for a Lot which
has been offered for sale (whether by Private Treaty, Auction or
otherwise) and which bid or offer has, subject to a reserve price,
been accepted by Aspire and/or the Seller;
1.1.8. "Business day" means any day other than a Saturday, Sunday, or
any other official public holiday in South Africa;
1.1.9. "Buyer's premium" means the commission payable by the Buyer to
Aspire on the sale of a Lot at a rate of:
184.108.40.206. 12% (twelve per cent) calculated on the full Hammer
price for purchases above R20,000 (twenty thousand
rand), plus VAT payable on that amount;
220.127.116.11. 15% (fifteen per cent) calculated on the full Hammer
price for purchases below R20,000 (twenty thousand
rand) plus VAT payable on that amount;
1.1.10. "Catalogue" means any brochure, price-list, condition report or any
other publication (in whatever medium, including electronic),
published by Aspire for the purpose of or in connection with any
1.1.11. "Forgery" means any imitation of any artistic work made with the
intention of misrepresenting the authorship, origin, date, age,
period, culture, and/or source of any Lot;
1.1.12. "Hammer price" means the bid or offer made by the Buyer for any
Lot that is knocked down by the Auctioneer at a sale of that Lot;
1.1.13. "Lot" means any item or items to be offered for sale as a unit and
identified as such by Aspire for sale by way of Auction or by Private
Treaty. Each Lot is, unless indicated to the contrary, regarded to
be the subject of a separate transaction;
1.1.14. "Parties" means the Bidder, the Buyer, the Seller and Aspire;
1.1.15. "Prime rate" means the publicly quoted base rate of interest
(percent, per annum compounded monthly in arrear and
calculated on a 365 (three hundred and sixty-five) day year,
irrespective of whether or not the year is a leap year) from time to
time published by Nedbank Limited, or its successor-in-title, as
being its prime overdraft rate plus three comma five percent, as
certified by any manager of such bank, whose appointment,
authority and designation need not be proved;
marked Annexure A;
1.1.17. "Private Treaty" means the sale of any Lot at a previously agreed
upon price between the Buyer and the Seller represented by Aspire
(that is, not by way of Auction);
1.1.18. "Purchase price" means the Hammer price plus the Buyer's
premium. In case of any Lot being "daggered", VAT shall be
calculated on the sum of the full Hammer price plus the Buyer's
premium. Buyer's risk in all respects shall apply from the knock
down of the Auctioneer's hammer (and acceptance of the bid [or
offer in the case of Private Treaty] if applicable). The Purchase price
does not include any transport, or insurance that may be required
by the Buyer;
1.1.19. "Recoverable expenses" includes all fees, taxes (including VAT) and
any other costs or expenses incurred by Aspire for restoration,
conservation, framing, glass replacement and transport of any Lot
from a Seller's premises to Aspire's premises or for any other
reason whatsoever, as agreed between Aspire and the Seller;
1.1.20. "Reserve" means the minimum Hammer price (if any) at which a
Lot may be sold at an Auction as agreed (whether in writing or
otherwise) and in confidence between the Seller of that Lot and
Aspire. All lots are sold subject to a reserve price unless announced
1.1.21. "Sale" means the sale of any Lot (whether by way of Auction,
Private Treaty or otherwise) and 'sell' and 'sold' shall have a
1.1.22. "Sale proceeds" means the amount due and payable to the Seller
for the sale of the relevant Lot, made up of the Hammer price less
the applicable Seller's commission and all Recoverable expenses;
1.1.23. "Seller" means the person named as the Seller of any Lot, being the
person that offers the Lot for sale;
1.1.24. "Seller's commission" means the commission payable by the Seller
to Aspire on the sale of a Lot which is payable at a rate of:
18.104.22.168. 12% (twelve per cent) calculated on the full Hammer
price for purchases above R20,000 (twenty thousand
rand) plus VAT payable on that amount (if any);
22.214.171.124. 15% (fifteen per cent) calculated on the full hammer
price for purchases below R20,000 (twenty thousand
rand) plus VAT payable on that amount;
1.1.25. "South Africa" means the Republic of South Africa;
1.1.26. "Terms of Business" means the terms and conditions of business
and the Rules of Auction as set out in this document;
1.1.27. "VAT" means value added tax levied in terms of the Value Added
Tax Act, 1991 as amended from time to time and includes any
similar tax which may be enforced in place of VAT from time to
2.1. Aspire carries on the business of fine art Auctioneers and consultants on the
Lots provided by the Sellers. As fine art Auctioneers, Aspire generally acts in
the capacity of agent for the Seller.
2.2. Set out in this document are the terms and conditions governing the
contractual relationship between Aspire and prospective Bidders, Buyers and
Sellers. This document must be read together with:
2.2.1. sale room notices published by Aspire pertaining to the condition,
description and/or authenticity of a Lot; and
2.2.2. any announcement made by Aspire and/or the Auctioneer prior to
or on the proposed day of sale of any Lot,
provided that no changes to the terms set out in a Property Receipt Form shall
be made without the prior agreement of Aspire and the Seller.
3. LEGISLATIVE FRAMEWORK
Every Auction is to be governed by section 45 of the CPA and the rules of Auction (the
"Rules") as promulgated by the Minister of Trade and Industry under the Regulations
dated 23 April 2010 in Government Gazette No. 33818 on 1 April 2011 ("Regulations")
and any further amendments and/or variations to these Rules and Regulations.
4. GENERAL TERMS OF BUSINESS
4.1. Every bid made shall constitute an offer. Acceptance of the highest bid made,
subject to confirmation by the Seller, shall be indicated by the knock down of
the hammer or, in the case of sale by Private Treaty, the acceptance of the
offer by Aspire or the Seller. In the event that the highest bid does not meet
the reserve, it will remain open for acceptance by the Auctioneer or the Seller
and for no less than 48 hours after the Auction was concluded.
4.2. In bidding for any Lots, all Bidders confirm that they have not been induced
into making any bid or offer by any representative of the Seller and/or Aspire.
4.3. It is the sole responsibility of all prospective Buyers to inspect and satisfy
themselves prior to the Auction or Private Treaty as to the condition of the Lot
and satisfy themselves accordingly that the Lot matches any description given
to them (whether in a Catalogue or otherwise).
4.4. All descriptions and/or illustrations set out in a Catalogue exist as guidance for
the prospective Bidder and do not contain conclusive information as to the
colour, pattern, precise characteristics or the damage to a particular Lot to be
sold by way of Auction or Private Treaty.
4.5. Neither Aspire nor any of its servants, employees, agents and/or the
Auctioneer shall be liable, whether directly or indirectly, for any errors,
omissions, incorrect and/or inadequate descriptions or defects or lack of
authenticity or lack of ownership or genuineness in any goods Auctioned and
sold which are not caused by the wilful or fraudulent conduct of any such
4.6. Aspire shall not be held responsible for any incorrect, inaccurate or defective
description of the goods listed for sale in the Catalogue or in any condition
report, publication, letter, or electronic transmission or to the attribution,
origin, date, age, condition and description of the goods sold, and shall not be
responsible for any loss, damage, consequential damages and/or patrimonial
loss of any kind or nature whatsoever and howsoever arising.
4.7. No warranty, representation or promise on any aspect of any Lot (save for
those expressly provided for by the Seller in terms of paragraph 16), whether
express, implied or tacit is given by Aspire, its servants, its agents, or its
employees, or the Auctioneer or the Seller and accordingly nothing shall be
binding or legally enforceable in this regard.
4.8. Any Lot which proves to be a Forgery (which will only be the case if an expert
appointed by Aspire for such purposes confirms this in writing) may be
returned by the Buyer (as his sole remedy hereunder or at law) to Aspire
within 7 (seven) days from the date of Auction or Private Treaty (as the case
may be), in the same condition in which it was at the time of the Auction or
accompanied by a statement of defects, the number of the Lot, and the date
of the Auction or Private Treaty at which it was purchased. If Aspire is satisfied
that the item is a Forgery and that the Buyer has and is able to transfer a good
and marketable title to the Lot, free from any third-party claims, the sale will
be set aside and any amount paid in respect of the Lot and still in the
possession of Aspire will be refunded, subject to the express condition that the
Buyer will have no rights or claims against Aspire (whether under these Terms
of Business, at law or otherwise) if:
4.8.1. the description in the Catalogue at the date of the sale was in
accordance with the then generally accepted opinion of scholars
and experts or fairly indicated that there was conflict of such
4.8.2. the only method of establishing at the date of publication of the
Catalogue that the Lot was a Forgery was by means of a scientific
process not generally accepted for use until after publication of the
Catalogue, or by a process which was unreasonably expensive or
4.9. Buyer's claiming (whether in contract, delict or otherwise) under paragraph
4.8 will be limited to the amount paid for a particular Lot and will not extend to
any loss or damage of whatsoever nature suffered, or expense incurred by
him/her including but not limited to claims for damages, loss of profit, injury to
reputation, mental anguish and suffering etc;
4.10. The benefit of paragraph 4.8 will not be assignable and will rest solely and
exclusively with the Buyer who, for the purpose of this condition, will be the
only person to whom the original invoice is made out by Aspire in respect of
the Lot sold.
4.11. Aspire reserves its right, to refuse admission to any person to its premises or
any other premises at which an Auction is to be conducted. Any defaulting
bidder or buyer shall be refused access to any event or auction conducted by
Aspire and shall remain barred until their default has been cured to the
satisfaction of Aspire.
4.12. Any information pertaining to Bidders and Sellers which has been lawfully
obtained for the purposes of the Auction and the implementation of any
resultant sale shall be kept for purposes of client administration, marketing
and as otherwise required by law. The Bidder and the Seller agree to the
retention, processing of their personal information and the disclosure of such
information to third parties (but only in connection with the sale of any works
such as logistics and insurance) for the aforementioned purpose. The Seller's
identity will not be disclosed for purposes other than what is reasonably
required for client administration or as required by law. Please see the Privacy
Policy for more information on this.
4.13. Aspire has, during the course of any Auction, the sole and absolute discretion,
without having to give any reasons therefore, to refuse any bid, withdraw or
reoffer Lots for Auction (including after the knock down of the hammer),
cancel any sale if the Auctioneer and/or Aspire believes that there may be an
error or dispute of any nature whatsoever, and shall have the rights, as it
deems fit, to divide any Lot, to combine any two or more Lots or to put up any
Lot for Auction again.
4.14. For any notice required to be given in connection with these Terms of Business
and Rules of Auction:
4.14.1. Aspire will first attempt to make contact by telephone, followed by
email, should there be no response, then contact will be attempted
by registered post. Any notice that effects the details of the sale of
a Lot will be agreed to between Aspire and the Seller prior to the
sale of said Lot. If, for any reason whatsoever, Aspire is unable to
make contact with a Seller, the relevant Lot will be withdrawn from
4.14.2. if given by Aspire, shall be delivered by hand, sent by registered
post or by email to the address provided to Aspire by the relevant
addressee as being the domicilium citandi et executandi of that
addressee. Notice shall be deemed to have been received by the
person who is required to receive such notice:
126.96.36.199. on the date of delivery, if delivered by hand or email;
188.8.131.52. on the fourth (4th) day from the date of posting,
including the date of posting if posted by prepaid
registered post from within South Africa, which postage
shall be deemed to have been sent on receipt of the
post office proof of posting.
4.14.3. if given to Aspire, such written notification must be given to Aspire
at its email address as published by Aspire from time to time,
whether on any brochure, catalogue or its website.
4.15. The Seller submits to the non-exclusive jurisdiction of the South African courts.
Each Auction and Private Treaty shall be governed in accordance with the laws
of South Africa.
4.16. In the event that any provision of these Terms of Business is found by a court
of competent jurisdiction to be unenforceable and of no effect, the remaining
provisions of these Terms and Conditions shall not be affected by that
determination and shall remain binding and of full force and effect.
4.17. The Buyer and/or Seller, as the case may be, hereby pledge(s) the goods either
sold and/or bought as security to Aspire for all amounts which are owing to
4.18. Should any Party delay or not exercise their rights it shall not constitute a
waiver of such rights or power. If a Party exercises their right or power, it shall
not preclude such party from exercising any other right or power which they
4.19. No variation, alteration, consensual termination, representation, condition,
term or warranty, relaxation or waiver or release by Aspire, or estoppel against
Aspire, or the suspension by Aspire, in respect of these Terms of Business, or
any part thereof, shall be of any force or effect unless reduced to writing and
signed by Aspire and the Buyer.
4.20. These Terms of Business and Rules of Auction constitute the entire agreement
between the Parties.
4.21. The Buyer shall be responsible for the payment of the Seller's and Aspire's
legal costs, calculated on the scale as between attorney and own client
incurred by the Seller and Aspire in enforcing any of its rights or those of its
principal whether such rights are exercised by way of legal proceedings or
4.22. No Party shall be in breach of contract or liable for any loss of profit or special
damages or damage suffered as a result of a force majeure or any other event
which falls outside of the Parties' reasonable control. Notice must be given to
all Parties if such an event occurs in order to enable the defaulting Party to
remedy their performance. The occurrence of the aforementioned events will
not excuse a Party from paying any outstanding amounts owed to any of the
5. TERMS RELATING TO THE BUYERS
5.1. Any Buyer and/or Bidders must register his/her identity with Aspire before the
commencement of an Auction in accordance with Chapter 1 (one) of the
regulations in terms of the Financial Intelligence Centre Act, 2011, which
requires the establishment and verification of identity published in Notice No.
R. 1595 in Gazette No. 24176 of 20 December 2002. The documents required
will include Identity Document or Passport and Proof of Residence.
5.2. Upon registration by the Bidder, the Bidder must acknowledge that they are
aware of and agree to be bound by these Terms of Business. All Bidders shall
be personally liable for their bids and offers made during any Auction and shall
be jointly and severally liable with their principals if acting as agent.
5.3. Any person acting on behalf of a Bidder or Buyer may be required to produce
evidence of his/her authority to so act and in a manner that is satisfactory to
Aspire in its discretion.
5.4. A Lot shall be sold to the highest bidder (regardless of the perceived or actual
value of the Lot) but subject to the reserve or the consent of the Seller if the
reserve has not been met.
5.5. No bid may be made for an amount which is lower than the fixed value set by
the Auctioneer and any bid may be withdrawn prior to the hammer being
struck down. It is the Auctioneer's discretion to accept or reject a bid that is
lower than the standardised incremental amount set by the Auctioneer. The
Auctioneer may refuse any bid which does not exceed the previous bid by at
least 5% (five per cent) or any such percentage which in the opinion of the
Auctioneer is required.
5.6. Any dispute which should arise regarding the validity of the bid, the identity of
the Bidder or between more than one Bidder, shall be resolved at the sole
discretion of the Auctioneer.
5.7. Each Bidder is deemed to be acting in their capacity as principal unless Aspire
has acknowledged otherwise in writing prior to the commencement of the
Auction and the Bidder bidding for another shall be required to produce a
letter authorising the Bidder to represent him and the Identity Documents of
both persons .
5.8. All Bidders are encouraged to attend any Auction where a Lot is to be sold by
Auction. Aspire will endeavour to execute any absentee, written bids and/or
telephone bids, provided they are, in Aspire's absolute discretion, received in
sufficient time and in legible form as required under these Terms of Business.
5.9. Any bids placed by telephone before an Auction are accepted at the sender's
risk and must, if requested by Aspire, be confirmed in writing to Aspire before
the commencement of the Auction. Any person who wishes to bid by
telephone during the course of an Auction must make arrangements with
Aspire at least 24 (twenty-four) hours before the commencement of the
Auction. Aspire shall not be held liable for any communication breakdown or
any losses arising thereof. The Buyer consents that any bidding may be
recorded at the discretion of Aspire and consents to these Terms of Business.
5.10. The Buyer must make payment in full and collect the purchased Lot
immediately after completion of the Auction and no later than 48 (forty-eight)
hours after completion of the Auction. On hand over of the Lot to the Buyer
(or his representative), the full risk and title (subject to payment in full having
been made first) over that Lot shall pass to the Buyer, who shall henceforth be
responsible for any loss of and/or damage to and/or decrease in value of any
Lots purchased at the Auction or at a Private Treaty sale. Any Lot not collected
immediately after the Auction will remain insured for 48 (forty-eight) hours
after completion of the Auction. The Seller must be paid in full and the funds
cleared before the Lot is handed over to the Buyer.
5.11. If the Buyer has not made payment within 1 (one) week of the Auction Aspire
reserves the right to cancel the Sale and to claim damages from the Buyer
including but not limited to the Buyers and Sellers premium, storage and
insurance costs and the costs of conducting the auction which are estimated at
one million rand per auction.
5.12. The collection of any Lot by a third party on behalf of a Buyer must be agreed
with Aspire not later than the close of business on the day following the
6. EXCLUSION OF LIABILITY TO BUYERS OR SELLERS
6.1. No Buyer or Seller shall be entitled to cede, delegate and/or assign all or any of
their rights, obligations and/or interests to any third party without the prior
written consent of Aspire in terms of these Terms of Business.
6.2. The Buyer accepts that neither Aspire nor the Seller:
6.2.1. shall be liable for any omissions, errors or misrepresentations in
any information (whether written or otherwise and whether
provided in a Catalogue or otherwise) provided to Bidders, or for
any acts and/or omissions in connection with the conduct of any
Auction or for any matter relating to the sale of any Lot, including
when caused by the negligence of the Seller, Aspire, their
respective employees and/ or agents;
6.2.2. gives any guarantee or warranty to Bidders other than those
expressly set out in these Terms of Business and any implied
conditions, guarantees and warranties are excluded; and
6.2.3. without prejudice to any other provision of these general Terms of
Business, any claim against Aspire and/or the seller of a Lot by a
Bidder shall be limited to the Hammer price of the relevant Lot.
Neither Aspire nor the Seller shall be liable for any loss of profit,
indirect or consequential losses.
6.3. A purchased Lot shall be at the Buyer's risk in all respects from the knock down
of the Auctioneer's hammer (and acceptance of the bid if applicable), whether
or not payment has been made, and neither Aspire nor the Seller shall
thereafter be liable for, and the Buyer indemnifies Aspire against, any loss or
damage of any kind, including as a result of the negligence of Aspire and/or its
employees or agents.
6.4. All Buyers are advised to arrange for their own insurance cover for purchased
Lots unless agreed otherwise in writing.
6.5. Aspire does not accept any responsibility for any Lots damaged by insect
infestation, changes in atmospheric conditions or other conditions outside its
control (including damage arising as a result of reasonable wear and tear).
Aspire will be responsible for the replacement or repair costs for any frame
and glass breakages resulting from the wilful or negligent conduct of any of
Aspire's servants and agents.
7. GENERAL CONDUCT OF THE AUCTION
7.1. The Auctioneer remains in control of the Auction and has the absolute
discretion to either withdraw or reoffer any Lots for sale, to accept and refuse
bids and/or to reopen the bidding on any Lots should he/she believe there may
be a dispute of whatever nature (including without limitation a dispute about
the validity of any bid, or whether a bid has been made, and whether between
two or more bidders or between the Auctioneer and any one or more bidders)
or error of whatever nature, and may further take such other action as he/she
deems necessary or appropriate. The Auctioneer shall commence and
advance the bidding or offers for any Lot in such increments as he/she
7.2. The Auction is to take place at the stipulated time and no delay shall be
permitted to benefit a specific person who is not present but should be
present at the Auction.
7.3. The Auctioneer shall be entitled to bid on behalf of the Seller of any lot, up to
but not equal to or more than the Reserve, where applicable.
7.4. A contract shall be concluded between the Buyer and Seller once the
Auctioneer knocks down the hammer and this shall be the Hammer price
accepted by the Auctioneer (after the determination of any dispute that may
exist and subject to the Seller's consent if the reserve price was not achieved).
The benefits flowing from this agreement constitute a stipulatio alteri for the
benefit of Aspire, which benefits Aspire hereby accepts. Aspire shall not be
liable for any breach of the agreement by either the Seller or the Buyer.
8. IMPORT, EXPORT, COPYRIGHT RESTRICTIONS, LICENSES AND QUALITY OF THE
8.1. Aspire and the Seller, save for those expressly set out in paragraph 16 of these
Terms of Business, make no representation or warranties whether express,
implied or tacit pertaining to the authenticity, quality, genuineness, condition,
value, origin, ownership of any goods or whether express, implied or tacit as to
whether any Lot is subject to import, export, copyright and licence restrictions.
It is the sole responsibility of the Buyer to ensure that they acquire the
relevant export, import licenses or copyright licenses prior to exporting or
importing any Lots.
8.2. Aspire does not in any way undertake to ensure that the Buyer procures the
necessary permits required under law, nor are they responsible for any costs
incurred in obtaining a license (whether an application for such license was
approved or not).
8.3. All Lots which incorporate any material originating from an endangered and/or
protected species (including but not limited to ivory and bone) will be marked
by a symbol in the description of the Lot in the Catalogue. Aspire does not
accept responsibility for a failure to include these marks on the Lots. Any
prospective Buyer is to ensure that they received the necessary permission
from the relevant regulatory agents, specifically when importing and/or
exporting the Lot. A Buyer will be required to acquire a permit from the
Department of Nature Conservation prior to exporting the Lot as well as any
other export license which may be required by law, including the licences
required under the Convention of the International Trade in Endangered
Species ("CITES"). Failure to obtain such permits shall not constitute a ground
for the cancellation of the sale or the non-payment of any amounts due in
9. ABSENTEE BIDS
9.1. Absentee bids are a service provided by Aspire upon the request of the Buyers.
Aspire shall in no way be liable for any errors or omissions in such bidding
process. The Purchase price of the Lots will be processed in the same manner
as it would be in other bids.
9.2. Where two or more Buyers provide identical bids, the earliest will take
precedence. When absentee bids occur by telephone they are accepted at the
Buyer's risk and must be confirmed prior to the sale by letter or e-mail to
9.3. All absentee bids shall be registered with Aspire in accordance with Aspire's
procedures and requirements not less than 24 (twenty-four) hours before the
Auction and/or the Private Treaty sale. Aspire reserves its right to receive,
accept and/or reject any absentee bids if the aforementioned time period has
not been satisfied.
9.4. An absentee bidder must register his/her identity in the same way that any
other would be required to under these Terms of Business.
10. RESCISSION OF SALE
Notwithstanding the provisions above, if, within 7 (seven) days after the relevant
Auction or Private Treaty sale, the Buyer makes a claim to rescind the sale due to
Forgery and Aspire is satisfied that the claim is justified, Aspire reserves the right to
rescind the sale and refund the Buyer any amounts paid to Aspire and still held by
Aspire in respect of that sale and the Seller hereby specifically authorises Aspire to do
11. PAYMENT AND COLLECTION
11.1. The Buyer acknowledges that Aspire acting in its capacity as agent for the
Seller of a particular Lot:
11.1.1. That a Buyer's premium shall be payable to Aspire on the sale of
11.1.2. VAT may be payable on the full Hammer price and the Buyer's
premium, if the Seller is a registered VAT vendor;
11.1.3. Aspire shall also be entitled to a Seller's commission and/or any
other agreed fees for that Lot.
11.2. Upon the knock down of the hammer and acceptance of the price by the
Auctioneer (subject to any reserve), the Buyer shall, before delivery of the Lot,
pay Aspire the Purchase price immediately after the Lot is sold and should
Aspire require, the Buyer shall provide it with their necessary registration
details, proof of identity and any further information which Aspire may
11.3. All foreign Buyers are required to make arrangement with their banks prior to
the Auction date regarding Forex funds as Aspire will only accept payment in
South African Rands. Any expenses incurred thereof shall be at the cost of the
11.4. The Buyer shall make payment in full to Aspire for all amounts due and payable
to Aspire (including the Purchase price of each Lot bought by that Buyer) on
completion of the sale but within 48 hours of the date of sale (or on such other
date as Aspire and the Buyer may agree upon in writing) in cash, electronic
funds transfer ("EFT"), or such other payment method as Aspire may be willing
to accept. Any cheque and/or credit card payments must be arranged with
Aspire prior to commencement of the Auction. All credit card purchases are to
be settled in full on the date of sale and shall be subject to an administrative
merchant fee of 5% of the hammer price plus Buyers Premium plus any vat on
11.5. Ownership of a Lot shall not pass to the buyer thereof until Aspire has received
settlement of the Purchase price of the respective Lot in full and the funds
have cleared. Aspire shall not be obliged to release a Lot to the Buyer prior to
receipt in full payment thereof. However, should Aspire agree to release a Lot
to the Buyer prior to payment of the full Purchase price, ownership of such Lot
shall not pass to the Buyer but shall remain strictly and unconditionally
reserved for the Seller, nor shall the Buyer's obligations to pay the Purchase
price be impacted, until such receipt by Aspire of the full Purchase price in
11.6. The refusal of any approval, licence, consent, permit or clearance as required
by law shall not affect the Buyer's obligation to pay for the Lot and any Buyers
11.7. Any payments made by a Buyer to Aspire may be applied by Aspire towards
any amounts owing by the Buyer to Aspire on any account whatsoever and
without regard to any directions of the Buyer or his agent. The Buyer shall be
and remain responsible for any removal, storage, or other charges for any Lot
and must at his own expense ensure that the Lot purchased is immediately
removed after the Auction but not until payment of the total amount due to
Aspire. All risk of loss or damage to the purchased Lot shall be borne by the
Buyer from the moment when the Lot is handed over to the Buyer. Neither
Aspire nor its servants or agents shall accordingly be responsible for any loss or
damage of any kind, whether caused by negligence or otherwise, from date of
the sale of the Lot, whilst the Lot is in their possession or control.
11.8. All packaging and handling of Lots is at the Buyer's risk and expense, will have
to be attended to by the Buyer, and Aspire shall not be liable for any acts or
omissions of any packers or shippers.
11.9. If the sale of any Lot is rescinded, set aside or cancelled by a lawful action of
the Buyer, and Aspire has accounted to the Seller for the sale proceeds, the
Seller shall immediately refund the full sale proceeds to Aspire, who will in turn
refund the Purchase price to the Buyer. If there is no sale, there is no
commission payable save and except if the sale is cancelled as a result of a
breach of either Seller or Buyer. However, if there are Recoverable expenses
which have been incurred by Aspire, then the Seller will remain liable to pay
these expenses to Aspire.
11.10. Any Lot which has been paid for in full but remains uncollected after 30 (thirty)
days of the Auction, following written notice to the Buyer, the Lot then
becomes the property of Aspire. Aspire may then resell this property at the
best price it can obtain from a willing and able Buyer. If Aspire resells this
property it may deduct any expenses incurred in keeping this property from
the proceeds of sale after having deducted its commission. Any shortfall
arising from the resale shall be at the cost of the Buyer.
11.11. No credit shall be granted to the Buyer without prior written consent from
Aspire. Ownership of the Lot shall not pass until such time as the full Purchase
price is paid along with any VAT thereon and any other necessary amounts
including but not limited to Buyers Premium.
12.1. Until such time that the total Purchase price and any Buyers Premium plus vat
has been paid and hand over has taken place, ownership of the purchased
goods shall vest with the Seller.
12.2. The collection of the goods/Lots shall be done by the Buyer at their own cost
immediately after the Auction has taken place, unless otherwise agreed upon
in writing between the Buyer and Aspire. The Buyer shall ensure that any third
parties attending to collection for the Buyer have been properly authorised in
writing to attend to such collections.
12.3. Aspire shall not provide any assistance of any nature whatsoever to the Buyer
in removing the goods from the premises of Aspire upon the completion of the
Auction. However, should Aspire choose to assist with the removal then any
Aspire employee or servant shall be deemed to be agents of the Buyer and
Aspire shall not be liable for any damage incurred as a result of removing the
goods from the premises.
13. BREACH BY THE BUYER
13.1. In the event that the Buyer breaches any provision of these Terms of Business,
fails to make payment of the full Purchase price, Buyers Premium or fails to
collect the goods bought as provided for in these Terms of Business, Aspire in
exercising its discretion and as agent for the Seller will, without any prejudice
to any other rights it may have in law, be entitled to exercise one or more of
the following remedies set out below. Aspire may:
13.1.1. institute proceedings against the Buyer for any non-payment
and/or any damages incurred as a result of the breach of contract;
13.1.2. cancel the sale of that Lot or any other Lots sold to the defaulting
Buyer at the same time or at any other Auction;
13.1.3. resell the Lot or do any such thing that would cause it to be resold
by Auction or Private Treaty sale;
13.1.4. remove, store and insure the goods at the sole expense of the
defaulting Buyer and if such goods are stored either at Aspire's
premises or any other place as Aspire may require such goods to
be stored at, the Buyer shall be responsible for all charges
13.1.5. retain any Lot sold to the same Buyer at the same time, or at any
other Auction and only allow the Buyer to take delivery of such
goods after all amounts due, owing and payable have been paid by
the Buyer to Aspire in terms of these Terms of Business, including
interest, storage charges and any other charges;
13.1.6. reject any bid made by or on behalf of the defaulting Buyer at any
13.1.7. exercise a right of retention over the goods sold and not to release
such goods to the Buyer until such time as full payment has been
made to Aspire in accordance with these Terms of Business. For
such purpose and in so far as ownership of the Lots may have
passed to Aspire, the Buyer hereby pledges such goods to Aspire as
security for Aspire's claim.
13.1.8. charge a reasonable rental fee for each day that the item is stored
by Aspire from the date of Auction until the time of collection.
13.1.9. charge interest at a rate of the prime rate plus 3% (three per cent)
per month on any outstanding amounts from the date of Auction.
13.1.10. charge the Buyer the full costs of conducting the auction which is
estimated at one million rand with a breakdown available on
13.2. In the event that Aspire resells any Lot at a subsequent Auction as a result of
Aspire exercising their remedy referred to in paragraph 13.1.3 above, the
Buyer shall be liable for any loss (if any), should the Lot be resold at an amount
lower than the amount for which the Buyer purchased it. The loss shall be
calculated as the difference between the resale price and the original price.
Aspire shall be entitled to earn commission on any subsequent sale of the
same work irrespective of how many times it is sold by them.
14. TERMS RELATING TO THE SELLER
14.1. As per the Seller's irrevocable instruction, Aspire is instructed to sell at an
Auction all objects submitted for sale by the Seller and accepted by Aspire and
to sell the same to the relevant Buyer of the Lot of which those objects form
part, provided that the bid or offer accepted from that Buyer is equal to or
higher than the Reserve (if any) on that Lot (subject always to paragraph 14.4),
all on the basis set out in these Terms of Business.
14.2. The Seller also irrevocably consents to Aspire's ability to bid for any Lot of
which any of those objects form part as agent for one or more intending
14.3. Aspire is authorised to retain any objects not sold on Auction for a period of 14
(fourteen) days after the Auction for the possible sale of such objects by Aspire
by way of Private Treaty or otherwise pursuant to paragraph 14.4.
14.4. Aspire is authorised to offer for sale either by Private Treaty or otherwise,
without further instruction or notification to the Seller, within 14 (fourteen)
days after the Auction, all or any remaining objects submitted for sale by the
Seller and received and accepted by Aspire in accordance with paragraph 14.1,
which objects were not sold on Auction. The bid accepted on these items
must not be less than the amount that the Seller would have received, had
that Lot been sold on Auction at the Reserve (if any) on that Lot taking into
account the deduction of the applicable Seller's commission and Recoverable
expenses for which the Seller is liable.
14.5. Both Aspire and the Auctioneer each have the right, to offer an object referred
to above for sale under a Lot, to refuse any bid or offer, to divide any Lot, to
combine two or more Lots with the prior approval of the relevant Seller(s), to
withdraw any Lot from an Auction, to determine the description of Lots
(whether in any Catalogue or otherwise), to store accepted objects at the
Auction premises or any other location as he/she may deem fit and whether or
not to seek the opinion of experts.
14.6. Aspire shall not be under any obligation to disclose the name of the Buyer to
the Seller, save for the circumstances contemplated elsewhere in these Terms
of Business or otherwise required by law.
15. ESTIMATION OF SELLING PRICE AND DESCRIPTION OF GOODS
15.1. Any estimation given by Aspire is an opinion and cannot be relied on as a true
reflection of what the final Hammer price will be on the date of the sale and as
such is never guaranteed. Aspire has the right to change any estimations at
any point in time in agreement with the Seller recorded on the relevant
Property Receipt Form.
15.2. The Seller hereby agrees that Aspire may fully rely on any description of the
goods or Lots provided to them by the Seller or his agent.
15.3. Aspire shall not be held liable for any error, misstatement or omission in the
description of the goods/Lots whether in the Catalogue or otherwise unless
such error, misstatement, omission is a direct result of the intentional,
misleading and deceptive conduct of Aspire's employees and/or agents.
16. WARRANTIES AND INDEMNITIES PROVIDED FOR BY THE SELLER
16.1. The Seller hereby warrants to Aspire and the Buyer that:
16.1.1. he/she is the lawful owner of the objects put up for sale or Auction
and is authorised to offer such objects up for sale at an Auction;
16.1.2. he/she is legally entitled to transfer title to all such objects and that
they will be transferred free of any encumbrances of third-party
16.1.3. he/she has complied with all requirements necessary, legal or
otherwise, for the import (if importing is applicable to the sale) and
has notified Aspire in writing of any third parties who have failed to
comply with the aforesaid requirements in the past;
16.1.4. the place of origin of the Lot is accurate.
16.1.5. the object forming part of the Lot is capable of being used for the
purpose to which it was made and has no defects which are not
apparent from any external inspections and that he/she is in
possession of any valid approval, license, consent, permit or
clearance required by law for the sale of any Lot.
16.2. The Seller hereby indemnifies and shall keep Aspire and the Buyer indemnified
against any loss or damage suffered by either party as a result of any breach of
any warranty in these Terms of Business.
16.3. The Seller hereby agrees that Aspire may decline to sell any object submitted
for sale, irrespective of any previous acceptance by Aspire to sell it, for any
reason deemed reasonable and appropriate in its discretion.
Subject to the Terms of Business set out in paragraph 17.3
17.1. Any applicable Seller's commission in respect of each Lot (comprising one or
more objects) shall be payable to Aspire by the Seller.
17.2. Any applicable Buyer's premium in respect of each Lot (comprising one or
more objects) shall be payable to Aspire by the Buyer;
17.3. Notwithstanding the authority provided for by the Seller to Aspire to deduct
any of the Seller's commission and any Recoverable expenses (as agreed to by
the Seller) for which the Seller is liable from the Hammer price, the Seller shall
still be liable for the payment of the Seller's commission and any Recoverable
17.4. Notwithstanding the authority provided for by the Buyer to Aspire to deduct
any of the Buyer's premium and any Recoverable expenses (as agreed to by
the Seller) for which the Buyer is liable from the Hammer price, the Buyer shall
still be liable for the payment of the Buyer's premium and any Recoverable
17.5. Aspire reserves the right to deduct and retain the Seller's commission prior to
the sale proceeds being handed over to the Seller, from the amount paid by
the Buyer upon receipt of the full Purchase price, or any part thereof.
17.6. Aspire reserves the right to deduct and retain the Buyer's premium prior to the
Purchase price being handed over to the Seller from the Purchase price paid by
18.1. All Lots are to be sold with a Reserve, unless otherwise agreed upon between
Aspire and Seller in writing prior to the date of Auction. Any changes to a
Reserve will require the prior consent of Aspire and the Seller. The Seller
acknowledges that unless a reserve is set, Aspire shall not be entitled to bid on
behalf of the Seller to protect the integrity of the value of any work being
18.2. Where the Auctioneer is of the opinion that the Seller or any person acting as
agent of the Seller, has made a bid on the Lot and above a Reserve that existed
on such Lot, they may knock down the Lot to the Seller. The Seller will then be
required to pay all expenses which the Buyer is liable for and any expenses
which the Seller is liable for along with the Seller's commission to Aspire.
18.3. In the event that a Reserve exists on a particular Lot, Aspire may sell such Lot
at a Hammer price below the Reserve, on the condition that the Seller receives
the amount they would have been entitled to, had the sale been concluded at
the Reserve. Aspire reserves the right to adjust the Seller's commission
accordingly in order to allow the Seller to receive the amount payable had the
Lot been sold at the Reserve.
18.4. Where a Reserve on a Lot does not exist, Aspire shall not be liable for the
difference between the Purchase price and the estimated selling range.
19.1. Aspire undertakes to insure all objects to be sold as part of any Lot, at its own
expense, unless otherwise agreed to in writing, or otherwise, between the
Seller and Aspire. Aspire may, at its discretion, insure any property which is
placed under their control for any other purpose for the duration of the time
that such property remains on their premises, under their control or in any
storage facility elected by them.
19.2. In the event that Aspire is instructed to not insure any property, the Seller shall
bear the cost and risk at all times. The Seller also agrees to:
19.2.1. indemnify Aspire for any claims brought against Aspire and/or the
Seller for any damage or loss to the Lot, however it may arise.
Aspire shall be reimbursed by the Seller for any costs incurred as a
result thereof; and
19.2.2. notify the insurer of the existence of the indemnities set out
19.3. The Seller is obliged to collect their unsold property within 30 calendar days
after the Auction. Should any property not be collected within this time Aspire
reserves the right to discontinue the insurance cover.
20. PAYMENT IN RESPECT OF THE SALE PROCEEDS
The proceeds of sale shall be paid as follows:
20.1. Aspire shall make payment to the Seller not later than 20 (twenty) working
days after the date of the Auction provided that full cleared payment of the
Purchase price for said Lot has been received from the Buyer by Aspire.
20.2. If the Buyer fails to pay the full Purchase price within the allocated time set out
in paragraph 11.2, Aspire shall notify the Seller in writing and request
instruction on how to proceed. Aspire may at its discretion, decide to assist
the Seller with the recovery of any outstanding amount from the Buyer.
20.3. The Seller hereby authorises Aspire to proceed:
20.3.1. to agree to the terms of payment on any outstanding amount;
20.3.2. to remove, store and insure the Lot which has been sold;
20.3.3. to settle any claim by or against the Buyer on such terms as Aspire
deems fit and do all such things necessary to collect from the Buyer
any outstanding amounts due to the Seller;
20.3.4. to rescind the sale and refund these amounts to the Buyer;
20.3.5. where Aspire pays the Sale proceeds to the Seller prior to receipt
of the full Purchase price then ownership shall pass to Aspire;
20.3.6. to obtain a refund from the Seller where the sale of a Lot has been
set aside, or cancelled by the Buyer in terms of paragraph 10 above
and Aspire has paid the sale proceeds to the Seller. In such
instance, the Seller shall be required to refund the full sale
proceeds to Aspire, who will then in turn refund the Buyer. Aspire
will then make the Lot available for collection to the Seller; and
20.3.7. that any annulment, rescission, cancellation or nullification of the
sale in terms of paragraph 10 above shall not extinguish the Seller's
obligation to pay the commission to Aspire and/or to reimburse
any expenses incurred by Aspire in respect of this.
21. WITHDRAWAL FEES
Written notice must be given to Aspire 7 (seven) days prior to the Auction, where a
Seller decides to withdraw a Lot from Auction. Aspire reserves the right to convert
any Seller's commission and Buyer's premium payable on this Lot, as well as any
Recoverable expenses, photography costs, advertising and marketing costs, or any
other expenses incurred on a Lot, into withdrawal fees. The amount of this
withdrawal fee shall be determined based on the mid-estimate of the selling price of
the objects comprising the Lot along with any VAT and expenses incurred thereon
given by Aspire.
22. PHOTOGRAPHY AND ILLUSTRATIONS
Aspire reserves the right to photograph or otherwise reproduce the images of any Lot
put on offer by the Seller for sale and to use such photographs and illustrations as
they deem necessary. Aspire undertakes to ensure compliance with the relevant
Copyright laws applicable in their dealings with any and all Lots put up for sale.
23. LOTS WHICH HAVE NOT BEEN SOLD
23.1. Subject to paragraph 14.4 above, upon the receipt of notice from Aspire of any
unsold Lots, the Seller agrees to collect any such Lots no later than the 30th
(thirtieth) day after receipt of such notice. The Seller must make further
arrangement to either have the Lot resold or collect it and pay all agreed
Recoverable expenses for which they are liable.
23.2. The Seller shall be liable for all costs, whether it be for storage, transport or
otherwise as a result of their failure to collect the Lot.
23.3. If after 3 (three) months of notice being sent to the Seller, Aspire will proceed
to sell the Lot by Private Treaty or public Auction on the terms and conditions
that they deem fit, without Reserve and Aspire shall be able to deduct from
the Hammer price all amounts owing to them including (but not limited to) any
storage or transport expenses, any reduced commission from the Auction as
well as any other reasonable expenses before the balance is paid over to the
Seller. If Aspire is unable to locate the Seller, Aspire shall open a bank account
in which Aspire will hold on behalf of the Seller the amount due to the Seller.
23.4. Aspire reserves the right to charge commission on the Purchase price and any
expenses incurred in respect of any unsold Lots.
24. AMENDMENT OF THESE TERMS AND CONDITIONS
24.1. Aspire may, at any time and from time to time, in its sole discretion, amend,
cancel or rescind any provision of these Terms of Business by publication of
any such amended Terms of Business (whether on its website or by any other
24.2. No amendment in terms of paragraph 24.1 above shall be binding on any Party
to any Sale which has been entered into as at the date of that amendment
unless agreed to by the relevant Parties in terms of paragraph 24.3.
24.3.1. amendment or consensual cancellation of these Terms of Business
or any provision or term hereof;
24.3.2. agreement, bill of exchange or other document issued or executed
pursuant to or in terms of these Terms of Business (including,
without limitation, any valuation, estimate or reserve issued in
24.3.3. settlement of any dispute arising under these Terms of Business;
24.3.4. extension of time, waiver or relaxation or suspension of or
agreement not to enforce or to suspend or postpone the
enforcement of any of the provisions or terms of these Terms of
Business or of any agreement, bill of exchange or other document
issued pursuant to or in terms of these Terms of Business,
shall be binding on any Party to any Sale concluded in terms of these Terms of
Business unless agreed to by the Parties to that Sale (whether that agreement
is recorded in writing or otherwise).
Terms defined in the Terms of Business shall bear the same meaning when used in
1. INFORMATION ASPIRE MAY COLLECT AND PROCESS
1.1. Aspire may use and store the following:
1.1.1. any information received, whether it be from the completion of
online forms for registration purposes or otherwise, from any
Bidder, Buyer or Seller (including documents filled out in person by
any Bidder, Buyer or Seller);
1.1.2. information required to send out marketing material;
1.1.3. any data received from the making of a bid or the posting of any
material to Aspire;
1.1.4. any information received from correspondence between Aspire
and any Bidder, Buyer or Seller, whether it be by e-mail or
1.1.5. information received for the purpose of research, including by
1.1.6. information received from telephone communications, in person
or otherwise in carrying out any transaction and/or Auction;
1.1.7. general information from the receipt of any hard copy documents
in respect of the date of birth, name, address, occupation,
interests, credit information (if required by Aspire) and any further
personal information of any Bidder, Buyer or Seller obtained by
Aspire during the course of conducting its business;
1.1.8. details received from the completion of any contract of sale
between Aspire, the Bidder, Buyer and/or Seller;
1.1.9. details from the visits made to Aspire's website and any
resources/information accessed therein;
1.2. the aforesaid data shall not be supplied and distributed to any third person
without the consent of the relevant Bidder, Buyer or Seller unless such supply
or distribution is required under law or is reasonably necessary for Aspire to
ensure performance of any and all of their obligations under the Terms of
Business. Therefore, Aspire shall only use the data collected for internal
1.3. personal information, whether private or public, shall not be sold, exchanged,
transferred, or provided to any other company for any reason whatsoever
without the relevant Bidder, Buyer or Seller's consent, other than for the
express purpose of effecting the collection of any purchased Lot. This will not
include trusted third parties, who assist Aspire in operating the website,
conducting business or servicing the website. All such persons agree to keep
the aforesaid personal information confidential; and
1.4. the release of any relevant Bidder, Buyer or Seller's personal information if any
shall be done only in circumstances which Aspire deems fit and necessary to
comply with the law or enforce its Terms of Business and/or to protect third
parties' rights, property or safety.
2. ONLINE INFORMATION PROCESSED BY ASPIRE
2.1. Aspire may collect and store information relating to a Bidder, Buyer or Seller's
("User") computer, including its IP address, operating system and browser
type, in order to assist Aspire with their systems administration from the use of
the website and previous transactions with them:
2.2. Cookies (a text file stored on the website's servers) may be placed on Aspire's
website to collect the information from each User pursuant to:
2.2.1. incorporating each User's preference and customising the website,
2.2.2. improving customer services;
2.2.3. the acceleration of searches;
2.2.4. automatically storing information relating to the most visited links;
2.2.5. sending updated marketing information (where the User has
consented to the receipt thereof).
A User has the option to not accept cookies by selecting such option on his/her
browser. If a User does so, it may restrict the use of certain links on the
website. The sole purpose of the aforesaid cookies is to collect information
about Aspire's website and not gather any personal information of the User.
3. STORAGE OF PERSONAL INFORMATION
3.1. Aspire shall do all such things reasonably necessary to ensure that the security
and privacy of all personal information received, is upheld - whether it be from
a bid made, a Lot which is purchased or where personal information is stored,
recalled or accessed from Aspire's servers and/or offices. This will include the
implementation of measures creating an electronic firewall system, regular
virus scanning mechanisms, security patches, vulnerability testing, regular
backups, security checks and recovery mechanisms and any other such
mechanisms that is reasonably necessary to ensure the protection of personal
3.2. Aspire shall ensure that all employees are sufficiently trained in the use of
Aspire's systems to ensure that the protection of all databases containing any
personal information is maintained.
3.3. Any information relating to, but not limited to, any personal information,
account details and personal addresses of any Bidder, Buyer or Seller shall be
encrypted and only accessible by limited authorised personnel and stored
either on an electronic server or in a safe area on the premises of Aspire. Each
individual with such authorisation shall ensure that all personal information
remains confidential and is protected in the manner contemplated in this
3.4. After the sale of a Lot, any credit card and EFT details shall not be stored by
3.5. Aspire does not send out e-mails requesting the account details of any Bidder,
Buyer or Seller. Aspire shall not be liable for any loss suffered as a result of any
fraudulent e-mails sent to any Bidder, Buyer or Seller by any third parties or
related fraudulent practices by third parties (including the unauthorised use of
Aspire's trademarks and brand names) in order to mislead any prospective
Bidder, Buyer or Seller into believing that such third party is affiliated with
3.6. Aspire may send out e-mails in respect of payment for any registration fees (if
applicable) and/ or payment with respect to the purchase of a particular Lot
placed on Auction.
Aspire may, from time to time, in its sole discretion, amend, cancel or rescind any
on its website or by any other means whatsoever). It is the responsibility of any
Bidder, Buyer or Seller to ensure that they are aware, understand and accept these
changes before conducting business with Aspire.
5. THIRD PARTY WEBSITES
information contained therein.
Aspire does not offer an in-house shipping service, however we can assist with quotations with our preferred logistics providers:
Fine Art Logistics (Johannesburg)
Aspiring Logistics (Cape Town)
Buyer's Premium is 15% + VAT (RSA VAT of 15%) for all purchases made via online bidding.
Invaluable marketplace clients will be charged a Buyer's Premium of 17% + VAT.
South African VAT of 15% is applicable on Buyer's Commission.
Purchases being exported can be zero-rated, however the purchaser may be liable for duties and taxes when shipping.