Terms and Conditions- Sport Horse Sales
1. Organiser of the public auction to be held on 27 November 2019
Organiser of the auction is Dipl. Ing. agr. (Graduate Agro Engineer) Volker Raulf
publicly appointed and sworn auctioneer of horses
Mennrath 100, D-41179 Moenchengladbach
(hereinafter referred to as Organiser)
Venue of the auction is the equestrian facilities Hetzel Horses GmbH Buschstr. 21 - 47574 Goch-Pfalzdorf
2. Nature of the auction
2.1 The auction addresses the general public, will be held at the above date and be freely accessible to everyone. The auction is governed by the provisions of Sections 383(3) and Section 474(1) sent. 2 BGB [German Civil Code]. It will be conducted by the organiser in his capacity as publicly appointed and sworn auctioneer. He will be calling the horses and award contracts. Tendering is open to everyone interested.
2.2 The regulations governing the purchase of consumer goods pursuant to Section 474 et seq. BGB are inapplicable.
3. Legal relationships
3.1 Tendering and sale are in the name of the organiser and for the account of the offerer/seller. The organiser acts as commission agent. Acceptance of the tender gives rise to a purchase contract between him and the purchaser. The legal relationship between the organiser and the offerer of the horses is a non-gratuitous contract for service or work. The purchaser is required to pay a fee to the organiser for his work (see sub-para. 6.1).
3.2 The purchaser recognises these terms by registering for and/or participating in the auction. Divergent, contrary or supplementary general terms and conditions – even if known - do not become part of the contract except if expressly accepted by the organiser as valid.
4. Particulars of horses offered
4.1 Non-exhaustive particulars of the qualitative traits of the horses offered are provided in a catalogue.
4.2 The information provided in the catalogue to the authors’ best knowledge and belief reflects the impression given by the horses at the start of their pre-auction workout, in terms of future performance. Such information does not constitute a binding description of the animal’s condition or a promise of guarantee.
4.3 It is incumbent on horse owners to check the auction catalogue for accuracy concerning the description of the horse and to promptly report errors to the organiser in writing along with requests for pertinent changes.
- All horses to be offered at the auction are presented for inspection prior to the event. Interested parties will also have the opportunity for closer scrutiny on the auction day proper during the inspection hours specified in the catalogue.
- The horses were clinically examined and x-rayed prior to the auction by an independent veterinary surgeon. The findings are available for inspection – also by the veterinary surgeons of interested parties - at the auction office on the day of the auction. The veterinary surgeon results constitute independent findings of the examining veterinary surgeon in question which expressly do not constitute a declaration of characteristics or a guarantee on the part of the organiser (see sub-para 8.3)
5. Auction procedure, tender and award of contract
5.1 The organiser is at any time free to refuse to accept horses with due cause. Moreover, the organiser is entitled to bar individual persons in justified cases from tendering and/or from entering the site.
5.2 The organiser is entitled, after due assessment of the circumstances, to withdraw horses or to call them at variance with the order specified in the catalogue.
5.3 The organiser is free to reject any offer/tender at any time without giving reasons.
5.4 The organiser may suspend or break off the auctioning of individual horses, may terminate the auction before its completion, and may generally take all and any action he considers necessary or appropriate in the interest of the auction.
5.5 Any person tendering as someone else’s proxy is required to submit to the organiser prior to the event a pertinent written commercial power of attorney in which the grantor accepts the auction terms without reservation. In the absence of such power the auctioneer may refuse to award the contract.
5.6 Tendering proxies are personally liable, in addition to their potential customers, for any failure to submit the power of attorney pursuant to sub-para. 5.5 to the organiser before the beginning of the event.
5.7 Tenderers remain committed to their bids until a higher bid has irrevocably been accepted.
5.8 Tenders shall be denominated in Euro.
5.9 The successful bid obligates the purchaser to accept the award. By virtue thereof the risks pertaining to and associated with the auctioned horse directly pass to the purchaser while title to the animal does not pass to the purchaser until the full purchase price has been received.
5.10 Reservations about the validity of the award shall be asserted promptly to both the auctioneer and the organiser, not later, however, than prior to the auctioning of the last horse remaining to be auctioned on the given auction day. It is incumbent on the organiser to decide whether the challenged award is to be rescinded and the subject horse called again.
5.11 Purchasers are required to identify themselves to the organiser and upon the latter's request also to its employees and sign a contract award notice. Unless such notice is submitted to the purchaser right after the award, the latter is obligated to call at the organiser’s office immediately following the auction to sign the notice there.
6. Purchase price, commissions and payment
6.1 The hammer price is identical with the net purchase price. In addition, the purchaser owes VAT at the habitual rate of 19 per cent. VAT can be dispensed with if the horse is sold into a non-EU country and exported immediately. The VAT can also be dispensed with if it is sold into an EU country and the purchaser is a business person purchasing the horse for that business and the said purchaser presents a valid VAT identification number (VAT no.). VAT is not payable for horses sold to other EU countries if the purchaser is a business owner, the horse is purchased for the business and a valid VAT number is presented for that company prior to invoicing. By way of exception, VAT may be waived if the tenderer legitimately treats the horse as part of its private property. The organiser will, where appropriate, offer guidance on this point. In addition, the purchaser owes factorage at a rate of 6 per cent of the hammer price plus pertinent VAT.
The total invoice amount owed by the purchaser consists of the following items:
- Hammer price
- Statutory VAT (except for private sale)
3. 6-percent factorage
- 19-percent VAT on factorage
__________ = Total invoice amount
6.2 The purchaser undertakes to pay the total invoice amount in cash or by bank-confirmed cheque or by way of electronic cash denominated in Euro without discount or by retention of the amount immediately following the auction at the organiser’s office. In case of payment by way of electronic cash the charges incurred shall be borne by the purchaser.
6.4 Payment by the purchaser with debt-discharging effect may only be made to the organiser.
6.5 The purchaser may set off receivables of its own against auction-related claims only if the given counterclaim is uncontested or finally established. The same shall analogously apply to the exercise or assertion of rights of retention.
6.6 If the auctioned horse is not picked up within 24 hours of contract award, the organiser is entitled to 30 € by way of box rental for each started day.
7. Organiser’s liability
7.1 Persons visiting or participating in the event and the preparation events, inspections and tests do so at their own risk. All and any liability of the organiser and its vicarious agents, likewise claims for damages or reimbursement of expenses of participants and visitors, irrespective of legal ground are hereby excluded.
7.2 The exclusion of liability provided for in sub-para. 7.1 above is not applicable in case of:
- damage caused by intent or gross negligence
- negligent breach of cardinal contractual duties including by legal representatives or vicarious agents of the organiser, in which case liability shall be confined to the foreseeable and direct average damage typical of the given type of contract
- culpable injury to the life, body or personal health
- fraudulently concealed impairments of the auctioned horses and/or guarantees assumed for their condition.
8. Warranties and guarantees
8.1 Any warranty of the organiser for impairments (e.g. illnesses) of the auctioned horses is excluded.
8.2 The exclusion of warranty provided for in sub-para. 8.1 does not apply in case of:
- impairments of the auctioned horses wilfully concealed by the organiser or its vicarious agents
- guarantees assumed for the condition of the auctioned horses
- the auctioning of such colts or young horses as need to be regarded as new goods within the meaning of Section 309(7) BGB, i.e. horses not yet ridden on or not yet included in any breeding programme
- claims under the law on product liability.
8.3 The organiser assumes no liability for the accuracy or completeness of the findings, assessments or statements made by veterinary surgeons prior to the auction. The examining veterinary surgeons are not vicarious agents of the organiser, their work results are in each case independently generated outcomes of their own and not a description of characteristics rendered by the organiser.
8.4 The following rules shall apply except if the organiser’s warranty for impairments of auctioned horses is excluded pursuant to sub-para. 8.1 or a guarantee has been agreed:
(1) Purchasers are obligated to give written notice of impairments or a guarantee claim to the offerer/seller within a cut-off period of one month of learning about the condition or a guarantee claim, providing pertinent details to the extent that they are able and can reasonably be expected to do so. Purchasers shall forfeit their warranty or guarantee claim if they accordingly fail to give notice of an apparent impairment or a guarantee claim obvious to them within the above one-month cut-off period.
(2) In the event of warranty claims arising, the organiser is entitled to meet the same by subsequent improvement or subsequent delivery. The purchaser shall accept subsequent delivery if subsequent improvement chosen by the purchaser is unreasonable, impracticable or has failed.
(3) If every form of a subsequent fulfilment has failed, the organiser is obligated in the case of a warranty claim to reverse the contract, doing so as a rule by refunding the hammer price and expenses necessarily incurred such as costs of fodder, shelter or blacksmith’s work as well as the fees and expenses potentially incurred for the services of veterinary surgeons.
Feeding and sheltering costs are considered to have been necessarily incurred up to an amount of 250.00 €/month. If the purchaser is unable to provide feeding and sheltering within that cost range, the organiser will nominate a qualified contractor capable of taking expert care of the horse for a monthly fee of 250.00 €.
(4) Claims of the organiser to surrender of or compensation for benefits gained or to compensation for deterioration of the horse remain unaffected.
9.1 Invoicing by the purchaser in the context of exporting the auctioned horse to another country shall take account and include proof of the given statutory and legal circumstances. The same is true if the animal is exported to another EU country.
9.2 If it turns out that contrary to the purchaser’s claims VAT-less invoicing is not permissible, the purchaser is obligated to subsequently pay the applicable statutory VAT to the organiser. The purchaser shall be liable for any damage arising from its failure to satisfy the requirements of sub-para. 9.1, notably for all pertinent judicial and extrajudicial costs arising.
10. Disputes and severability clause
10.1 Place of performance and venue is Kleve with the proviso that the organiser is entitled to alternatively sue purchasers at their places of residence or business.
10.2. German law shall apply.
10.3 If individual provisions of these terms of sale should be or become ineffective in whole or in part, the validity of the remaining provisions shall not be affected. Any such entirely or partly ineffective arrangement is to be replaced by provisions whose economic effect comes as close as possible to that of the ineffective arrangement (saving clause).
Kleve, 27 November 2019, Volker Raulf