McTear's Gallery1842 Ltd (“McTear’s”) - Terms of Business for Buyers and Sellers (“Terms”)
All auctions and receipt of items for sale by auction and/or appraisal/valuation and sold items not uplifted are held under these Terms and Conditions which are readily available on the premises and online [insert hyperlink]. Understanding and following these Terms is the responsibility of the Buyer/Seller. McTear’s staff will be happy to help if there is anything you do not fully understand.
All persons on McTear’s premises are there at their own risk and must ensure that they note the building plan and emergency exits. No McTear’s director or employee will be liable for personal injury or death (unless caused directly by the negligence of McTear’s staff) or for the safety of personal property, including vehicles.
Definitions
“McTear’s” means McTear's Gallery1842 Ltd. ”Buyer” means the person who is the accepted highest bidder for a lot and is deemed to have won the lot, and who agrees to pay the hammer price plus all commission charges. “Seller” is the person who consigns an item for sale/appraisal/valuation, who confirms that they are the rightful owner of an item, until such time as the item is sold to the Buyer or returned to the Seller. “Auctioneer” means the person conducting the auction. “You” and “Your” refer to the person dealing with McTear’s (buyer, bidder, seller, or person present in the auction room or via telephone/online service). “Lot” refers to the item or items purchased at auction by the Buyer, or the item or items consigned for sale and/or appraisal/valuation by the Seller. “Terms” means the terms and conditions as laid out in this document, subject to additional notes or amendments stated in the catalogue, on McTear’s website, or announced or displayed by the Auctioneer.
Returns Policy
Should any Lot be sold other than specifically described in terms of appearance or condition, authenticity or originality, the Buyer has 21 days from the date of sale to apply in writing for a refund of the purchase price. Shipping or postal or packaging costs are in every case at the expense of the Buyer, even in the case of a refund of the purchase price being agreed. No refunds for purchases will be made after the 21 day period.
A. For Buyers & prospective Buyers
1. Title
McTear’s acts at all times in the sale of goods as agents of the Seller of the Lots put up for auction only, and are not responsible for any default by either the Buyer or the Seller. As McTear’s act as agent only, title to any Lot at no time passes to McTear’s and accordingly they are not liable for any fault in connection with any Lot or defect or restrictions in the title of the Seller to sell any Lot . The Seller shall indemnify McTear’s against any claims in connection with any Lot sold by McTear’s on their behalf.
As Auctioneers we usually contract as agents for the Seller whose identity, for reasons of confidentiality, is not normally disclosed. Accordingly if you buy, your primary contract is with the Seller.
McTear’s offers more than 50,000 items through auction each year and does not knowingly accept Lots where there may be a doubt as to the validity or the legitimacy of the Seller’s right to sell. However, it should be noted that McTear’s (as with any auction company) acts only as an agent of the Seller and, as such, we have and the Buyer agrees that McTear’s has no liability in any claims by a Buyer.
2. Estimates
An Estimate is given as a guide to the price likely to be achieved by a Lot, and as such must not be relied upon as a definite figure. Estimates are subject to change up to the sale of the relevant Lot(s). Reserve prices are not disclosed, though the lower estimate may represent the reserve price. The lower estimate will not be below the reserve price. Estimates do not include the Buyer’s Premium or VAT (where applicable).
3. Buyer's Premium
Buyer’s Premium (or Commission) of 24% of the hammer price plus VAT thereon is payable for each Lot purchased.
4. VAT
The symbol ? next to a lot number indicates that VAT is payable by the buyer at the standard rate on the day of the auction on the hammer price as well as payable as part of the Buyer's Premium. This charge is not applied by McTear’s but through the European Union VAT registration or due to importation fees.
5. Droit de suite
Certain items incur a Droit de Suite charge (which will be indicated in catalogues with the * symbol with explanation clearly stated). Under Droite de Suite or Artist's Re-sale Rights legislation, auctioneers and art market professionals are required to collect royalty payments for all works of art by living artists and artists deceased within the previous 70 years, sold above the hammer price of 1000 euros, which is approximately ?750. The royalty of 4% of the hammer price is charged to the Buyer, in addition to the Buyer’s Premium and is not subject to VAT. All royalty charges are paid to the Design and Artists Copyrights Society (DACS) and no handling costs or additional fees are retained by McTear’s. Please check with the Auctioneer if you are unsure whether this royalty is payable on any Lot that you are considering bidding for. Please note that the royalty payment is calculated on the rate of exchange at the European Central Bank on the date of the sale.
6. Catalogue Descriptions and Condition Reports
As agents for the Seller, McTear’s relies on information from the Seller concerning a Lot. While we do provide catalogue descriptions of Lots, it is the responsibility of the Buyer to inspect the Lot and ascertain condition. There is ample opportunity to view and inspect Lots. Where there is no mention of condition in the catalogue description, this is not an indication of perfect or any condition. Where the Buyer is unable to inspect the Lot in person, a condition report must be requested to ascertain condition. A condition report on any item of a mechanical nature or with moving parts will not provide a guarantee of the working order of, for example, a watch, clock, barometer or other instrument, the condition report will only take account of the aesthetic or external condition of any given Lot. Requests must be received by 9am the day prior to the sale. Where a condition report is not requested and the Buyer subsequently detects damage, McTear’s is not obliged to give a refund. Lots mis-described because they are 'deliberate forgeries' may be returned and a refund made. There is a 21 day time limit (see Returns Policy). A 'deliberate forgery' refers to an object being purposefully treated/constructed/or otherwise handled with the intention of deceiving as to its true age/condition/materials/origin/etc.
7. Pictures – Catalogue Descriptions, Authenticity and Condition Reports Terminology
Full artist’s name: In our considered opinion, a work by the named artist.
Attributed to: In our opinion, likely a work by the named artist.
Studio of: In our opinion, probably a work by a student of the named artist and possibly under the direction of the named artist.
Manner of: In our opinion, a work which is in the style of the named artist but not necessarily by a student or associate of the named artist.
After: In our opinion, a later work, sometimes a copy of a specific work by the named artist which may or may not be authorised.
Only when the artist’s full name is catalogued without “Attributed to, Studio of, Manner of or After” (or any other qualification) is the authenticity of the work guaranteed by McTear’s. The extent of this guarantee is 21 days from the auction date and any enquiry regarding authenticity must be notified to McTear’s in writing within 21 days of the auction date. Beyond this 21 day period, no challenge to authenticity will be valid. Any refund (at McTear’s discretion) will be limited to the hammer price paid plus commission and VAT. No transport costs or ancillary charges will be refunded.
Authenticity of even the best known of paintings can sometimes be a matter of conjecture and so-called ‘experts’ often disagree. The work of most artists varies considerably during their lifetime and whilst the style they may be best known for is generally identifiable, early work is often more difficult to authenticate. McTear’s endeavours to catalogue Lots as accurately as possible and to resolve any dispute between Buyer and Seller with fairness and impartiality.
McTear’s will be happy to provide a written (email) condition report for any Lot with a value of ?200 or more. Verbal condition reports can usually be provided for lesser value pictures. Whilst every effort is made to provide an accurate report, none of our staff is a qualified picture restorer and therefore any condition report offered should be accepted as an indication of any obvious issues or problems or the lack of them. Buyers are urged to satisfy themselves in respect of the condition of any Lot and McTear’s can provide contact details of local professional restorers who will provide fully comprehensive expert reports – usually for a modest charge.
8. Electrical Goods and Fire Safety
McTear’s does not sell electrical and/or mechanical items as a general rule. Where electrical and/or mechanical items do appear for sale there is no guarantee of working order or of safety. These factors are the responsibility of the potential Buyers. Similarly, upholstered and fabric settees, sofas, and other soft furnishings must be examined by the Buyer prior to purchase to ascertain safety. McTear’s does not accept responsibility for the Buyer’s neglect to do so.
9. Export of Goods
It is the responsibility of the Buyer who intends to export items to determine whether a license is required to do so and to ensure that export of the item in question is permitted.
10. Registration and Bidding
Bidders are required to register their details with McTear’s in advance of the auction, and will if required complete all security checks before entering the auction room or bidding at a sale. McTear’s does not accept a mobile telephone number as the sole contact for a client. Photographic ID will be required to register as a new Buyer (driver’s license or passport).
A sale is complete when the Auctioneer announces its completion by the fall of the hammer but until such announcement is made the Buyer may retract his bid. The property in a Lot shall not pass to the Buyer from the Seller until he/she has paid the purchase price in full but not withstanding that the property in the Lot has not passed the risk or loss of damage to the Lot shall pass to the Buyer on the fall of the hammer. The Auctioneer may, without giving any reason therefore, decline to accept the bidding of any person or persons and/or withdraw the Lot from the Auction before the fall of the hammer. In the event of any dispute over any aspect of bidding, the Auctioneer shall have absolute discretion to settle such dispute.
Bidding increments shall be at the absolute discretion of the Auctioneer.
Upon the fall of the hammer the Buyer must present his/her buyer number to the Auctioneer and any employee of McTear’s who requests it, and if called upon to do so must immediately pay to McTear’s such proportion of the purchase price as McTear’s may require. The purchase money must be paid in full within seven days, and no Lots shall be removed until all purchase money has been paid. The Buyer shall pay the hammer price together with a premium of 24% of the hammer price plus VAT thereon.
If the Buyer has not paid for the Lot or Lots purchased within seven days of the sale, he shall be deemed to have received notice of McTear’s intention to re-sell the Lot in terms of Section 48(3) of the Sale of Goods Act 1979. If at the expiry of a further seven day period McTear’s has not received the purchase price, they may re-offer the Lot for auction. If upon such a re-sale a lower price is obtained for any such Lots than was obtained on the first sale, the difference in price shall be a debt due from the Buyer. Interest shall be charged at Bank of Scotland Base Lending Rate on any purchase monies outstanding after such period until the goods are re-sold.
The Auctioneer or a Company employee can bid on your behalf, but neither McTear’s nor the Auctioneer will be responsible for failure to do so. Where identical commission bids are received for a Lot, the Auctioneer reserves the right to give priority to the first recorded bid.
McTear’s reserves the right to refuse bidding by any person until all outstanding debts owed by that person to McTear’s are settled.
11. Commission Bidding and Telephone Bidding
The Terms as laid out in point 10 apply to commission and telephone bidders.
Commission bids and requests for telephone bidding must be received by McTear’s by 9am on the day of the sale. Commission bids do not include Buyer’s Premium. Those instructing commission and telephone bidding are deemed to have read and accepted McTear’s Terms and Conditions. Commission and telephone bidding are free services offered by McTear’s and McTear’s accepts no responsibility for failing to execute a bid or any errors connected to it. Telephone bidders should provide two telephone numbers. There is a limit to the number of telephone lines available for each Lot and interested parties are advised to submit requests as early as possible to avoid disappointment.
12. Live Online Bidding
The Terms as laid out in point 11 apply to online bidders.
McTear’s Live Auctions allows online bidding in real time with the auction. Lots purchased online are subject to an additional 3% of the hammer price plus VAT thereon. Identification details and credit card details will be required to register for online bidding. These card details will be used to pay all charges immediately following the auction. Registration must be completed by 9am on the day of the sale. McTear’s reserves the right to approve or otherwise bidders for the Live Auctions. Bidders are required to read the terms and conditions of ATG Media, which can be found at www.the-saleroom.com. Bidding using this service is the responsibility of the Buyer and clicking the Bid button is a commitment to buy and pay in full the relevant Lot. McTear’s will not be held responsible for failure of the online bidding service or for incorrect information provided by the-saleroom.com.
For the purposes of Live & Timed Online Auctions, in arranging the sale of individual Lots, McTear's act as the agent of a private individual.
13. Methods of Payment
Prospective Buyers new to McTear’s may be asked to supply bank references prior to the auction. Payment for purchased Lot(s) must be made by the registered Buyer; payment by a third party will be refused. Payment for goods bought at auction must be made within three business days (days on which the major banks in Scotland are trading). Payments may be made in cash (up to ?9,000), Switch, Debit or credit card (up to ?7000). McTear’s does not accept American Express. Cheques are accepted where a cheque guarantee card accompanies it. In the case that a cheque guarantee card is not provided, or the value of the cheque is not covered by a guarantee card, the goods will not be released until the cheque has cleared (which may take up to seven days). Payments can be made by debit and credit card in person only, and not by telephone. Payments “not present” can be made by bank transfer (details available from McTear’s) or using the secure online payment system available at mctears.co.uk/payments. McTear’s and Auctioneer reserve the right to reject bids by You until outstanding debts to McTear’s have been cleared. Buyers should contact their bank to arrange credit approval prior to the sale. Title of the Lot transfers to the Buyer only when payment is made in full.
14. Collection and Storage of Items Sold at Auction
Goods will be released only to the registered Buyer. Collection by courier/carriers will only be permitted upon receipt of written instruction from the Buyer and with the agreement of McTear’s. Collections by taxis or unauthorised individuals will be refused. You shall at your own expense remove items purchased within seven days of the auction, after which time McTear’s reserves the right to hold the Buyer liable for charges in storing the item(s) on the premises or for expenses incurred by McTear’s for storage of the item(s) at a facility outwith the premises. (After seven days from the auction date, a ?10 handling charge per item will apply, followed by a ?5 per item per day storage fee, all plus VAT). Items not paid and collected within seven days of the sale date may be re-sold by McTear’s (and any financial loss sustained by McTear’s must be settled by the Buyer) or otherwise disposed of at McTear’s’ discretion. Any financial surplus will belong to McTear’s.
McTear’s is not liable in any way for the safe keeping of any Lot(s) sold whether paid for or unpaid. Responsibility and risk for an item(s) held by McTear’s after sale, whether before or after payment in full or in part by or on behalf of the Buyer, lies with the Buyer and not with McTear’s. McTear’s gives no warranty and/or undertaking that any such item shall be insured by McTear’s against loss and/or damage. McTear’s shall not be responsible for damage or loss however occasioned or arising in respect of any item held by McTear’s except where such loss or damage shall be caused by fault and/or negligence of McTear’s and/or a person for whom McTear’s is responsible.
15. Shipping
The-saleroom.com delivery service is available for this sale and they will contact purchasers by email after the sale. Larger or multiple items, particularly paintings, can usually be transported "door to door" UK mainland for a typical cost of ?70 + vat by Aardvark Art Services Ltd who can be contacted at 01253 794673.
16. Non-payment of Items
McTear’s reserves the right to direct any proceeds of sale from other lots due to a Buyer (past or future sales) towards the settlement of amounts due to McTear’s, or to retain any proceeds to cover costs incurred by McTear’s.
Where a Buyer refuses to make payment, McTear’s reserves the right to proceed against the Buyer for breach of contract, pursuing all monies due and expenses incurred by McTear’s in so doing.
17. Alcohol
It is not permitted for anyone under the age of 18 to bid for or to collect alcoholic drinks from McTear’s. Proof of age may be requested.
B. For Sellers & Prospective Sellers
This section includes for items left with McTear’s for sale, appraisal, Evaluation or Valuation
1. Commission
Commission is charged to Sellers at the rate of 15% of the hammer price plus VAT thereon. The Seller authorises McTear’s to deduct this commission from the hammer price and other charges which may apply (as detailed below).
2. Delivery of Goods
Delivery of items for sale to McTear’s premises is undertaken at the risk of the Seller/owner. McTear’s staff can assist with items but responsibility for the items lies with the Seller. Items should be at McTear’s in advance of deadlines to allow for cataloguing and photography (where applicable).
3. Consigning a Lot for Sale
By consigning a Lot for sale the Seller confirms that he is the rightful owner of the item and understands that any breach of the Terms and Conditions will result in charges being applied.
4. Cataloguing and Photography
All items entered for sale are catalogued and described as the Auctioneer and staff see fit. Items entered into specialist auctions are in most cases photographed by McTear’s resident professional photographer. There is a ?10 Lotting Fee per lot applicable to items in specialist auctions. For items entered into all McTear’s auctions there is a minimum commission of ?4 plus VAT per lot.
5. Reserve Prices
A reserve price can be agreed on a Lot in advance of the auction between the Seller and the Auctioneer. An agreed reserve price allows the Auctioneer 10% discretion (or permits the Auctioneer to sell within one bid). Reserve prices must be reasonable and McTear’s reserves the right to decline to offer any Lot on which the reserve price is deemed unreasonable. The Seller may at no time bid on any Lot entered for sale by himself/herself. Increases in reserve prices will not be accepted after consignment.
6. Electrical Items and Fire Safety
McTear’s does not sell electrical and/or mechanical items as a general rule. Where electrical and/or mechanical items do appear for sale there is no guarantee of working order or safety. McTear’s reserves the right to dispose of unsafe electrical and/or mechanical items, charges for which will be incurred by the Seller. Similarly, upholstered and fabric settees, sofas, and other soft furnishings are subject to fire safety laws. Any item discovered to be unsafe or unregulated will be disposed of at the expense of the Seller or refused for sale.
7. Catalogue Descriptions and Inaccuracies
Where mis-information is provided by the Seller regarding a Lot, including authenticity and condition, the Seller will be liable for expenses incurred by McTear’s. The Seller agrees that in the case of mis-information being supplied to McTear’s that they will refund to McTear’s the total amount paid to them plus any expenses (for example shipping costs) incurred by the Buyer that are required to be refunded by McTear’s. The Seller shall not be held responsible where reasonable behaviour and non-deliberate inaccuracy have occurred.
8. Unsold and Withdrawn Items
Unsold items are automatically reoffered for sale. Where the item originally had a reserve price, this reserve price will be reduced at the discretion of the Auctioneer. By consigning an item for sale the Seller agrees that this reserve reduction will apply to the Lot should it be unsold. Should the Seller not wish to have the Lot reoffered, he/she must inform McTear’s of this and collect the Lot within seven days of the first auction date. Any unsold Lot uncollected within seven days will be offered for sale with a reserve price reduced to the level deemed reasonable by the Auctioneer.
Where a reasonable offer is received after the auction for an unsold Lot, the Auctioneer reserves the right to accept this offer and process the sale on behalf of the Seller.
If, following an auction, a Lot is deemed by the Auctioneer to be of no commercial value the Seller authorises the disposal of the Lot at no cost to the Seller.
The Seller is not authorised to withdraw any Lot consigned for sale, once the auction catalogue has been closed to entries (usually two weeks in advance of the auction date). For items withdrawn prior to this date, a handling fee of ?5 plus VAT per Lot will be charged.
9. Settlement
The Seller will receive settlement by cheque for Lot(s) sold 4-6 weeks following the sale once payment is received from the Buyer(s). Payment is not normally made in cash, unless by prior arrangement with McTear’s. Where payment has not been received from the Buyer(s) for any Lot(s), the Seller will not receive a settlement until the Lot(s) has been paid or reoffered at auction and paid.
10. Items, including Lots, left with McTear's
You shall at your own risk and expense remove unsold/withdrawn items within seven days of the auction, after which time McTear's reserves the right to hold the Seller liable for charges in storing the item(s) or for expenses incurred by McTear's for storage of the item(s) at a facility outwith the premises. (After seven days from the auction date a ?10 handling charge per item will apply, followed by a ?5 per item per day storage fee, all plus VAT.) Responsibility and risk for an item(s) held by McTear's prior to sale, including items held for appraisal, evaluation or valuation lies with the Seller and not with McTear's. McTear's shall not be responsible for damage or loss, however occasioned or arising, in respect of any item consigned with or otherwise held by McTear's except where such loss or damage shall be caused by fault and/or negligence of McTear's and/or a person for whom McTear's is responsible.
11. Cover for Loss
Unless specified by the Seller in writing, all items held by McTear's, including items held for sale, appraisal, evaluation or valuation, will be insured by McTear's against fire, theft and accidental damage with an insurer of McTear's choice, for which insurance McTear's shall charge a premium of 1.5% plus VAT on its best valuation of the item(s). McTear's shall have absolute discretion to determine the level of cover provided by said insurance. The insurance cover provided will be subject to such conditions and exemptions as specified by the insurer. A copy of the policy of insurance shall be provided on request. It is the responsibility of the Seller to request a copy of the policy of insurance and to satisfy himself as to its terms. Sellers may, at their own discretion, obtain separate policies of insurance in respect of the item(s) to be left with McTear's.
