I. The organiser of the auction is ESI Trading GmbH. ESI Trading GmbH auctions foals through an officially appointed and sworn auctioneer as leader of the auction. The exhibitor is the owner of the foal.
II. At the time of the auction the foals listed in the auction catalogue will be publicly auctioned on behalf of and for the account of the exhibitor as seller within the meaning of §§383 Abs. 1 und 474 Abs. 1 BGB (German civil code). In the case of sale, the contract of sale of the foal is concluded between the exhibitor/seller and the successful bidder/buyer.
III. The exhibitor accepts the auction conditions with the approval of the foal. By taking part in the bidding process, each bidder accepts the auction conditions.
I. The foals are offered in Euros, the minimum bid is 3.000,00 EUR. Foals will be sold to the highest bidder. Additional bids will only be accepted at a minimum of 200,00 EUR.
II. In case of doubt regarding the validity of the fall of the hammer the auction can be continued or repeated. The filing of objections to the effectiveness of the sale must take place immediately, not later than the sale of the last foal of the auction. The effectiveness of the sale will be decided by a representative of the organiser, the auction manager and the auctioneer.
C. BILLING, PAYMENT, TRANSFER OF OWNERSHIP
I. The hammer prices are net prices. VAT will be levied on the sale price according to the nature of the seller and will amount to 0% (private sale), 10,7% (flat-rate farmer) or 19% (commercial horse breeder). In the auction catalogue, the corresponding VAT rate is disclosed for each foal. VAT is declared after notification by the exhibitor. ESI trading GmbH assumes no liability for this information.
II. ESI Trading GmbH charges the buyer an auction fee of 6% of the hammer price plus 19% VAT.
III. Against this background the settlement amount will be calculated as follows:
Hammer price plus VAT
ESI auction fee (6%) plus 19% VAT
Insurance (2%) plus 19% insurance tax
IV. The settlement amount is irrevocably assigned by the exhibitor to ESI Trading GmbH for collection.
V. The settlement amount is due for payment immediately after the fall of the hammer. Payment must be made either in the auction office in cash or y cheque or by transfer to the ESI Trading GmbH account at the Volksbank.
VI. The exhibitor remains the owner of the respective foal in accordance with §449 BGB until the settlement amount has been paid to ESI Trading GmbH in full. In the case of payment by cheque or bank transfer, the transfer of ownership occurs at the time of the unconditional crediting of the settlement amount to the ESI Trading GmbH account at the Volksbank.
VII. Should the buyer not pay the settlement amount within 5 working days (including Saturday) after the auction, the seller may rescind the contract of sale and otherwise sell the foal. The first buyer is liable for any reduced proceeds and is also liable for any damages against the organiser.
VIII. The exhibitor irrevocably assigns to ESI Trading GmbH the right to sue to assert the sale price.
D. TAKING DELIVERY AND TRANSFER OF RISK
The buyer must take delivery of the foal at the latest 6 months after the birth of the foal. This is to take place at the residence of the exhibitor. Earlier acceptance of the foal by the buyer is possible in mutual agreement with the exhibitor. Until delivery of the foal is taken, the exhibitor bears the risk and maintenance costs, including expenses for veterinarians and farrier. The handover date is to be agreed between the buyer and the exhibitor. If the buyer should default on the acceptance of the foal, thus, with the beginning of the delay, the risk of incidental deterioration or loss of the foal is transferred to the buyer, just as the buyer has to bear the costs of maintenance, including expenses for veterinarians and farriers. When it comes to the delivery of the foal, should there be a difference of opinion between the exhibitor and buyer with regards to the state of health of the foal, or rather the readiness of the foal for handover, the veterinary clinic Janetzko & Lange, Varrelbusch, is to be consulted. The decisions of the veterinarians of this clinic are binding for the exhibitor and buyer. The costs for the services of the clinic are to be borne by the buyer. The delivery of the foal by the exhibitor to the buyer before the payment of the hammer price is at the risk of the exhibitor.
Each foal is insured by LVM for the amount of the hammer price, up to a maximum of 25.000 EUR in case of death, euthanasia and permanent loss of use, including accidental damage caused by ataxia and tendon injuries. 80% of the payout is made to the buyer. The insurance cover commences from the date of the fall of the hammer and ends with the completed 6th month of age of the foal, at the latest at the end of the current calendar year.
F. CHARACTERISTICS AND WARRANTY
The contractually agreed characteristics are the details in the auction catalogue regarding age, sex, colour and pedigree of the foal. The physical condition is as indicated by the report arising from the veterinary examination. The report represents the physical condition at the time of the auction. Any other written or oral statements made by the veterinarian or representatives of the organiser are not part of the agreement on characteristics. Complaints must be submitted to the seller in writing, and should also be communicated to ESI Trading GmbH. A replacement delivery as rectification is excluded. In the event of an effective rescission, claims for damages are excluded. All claims for damages are limited to transport costs from the auction stable to the buyer’s stable within Germany and usual stabling and feeding costs. Claims for defects or other claims for compensation become time-barred from the transfer of risk – in the case that the seller is an entrepeneur (§ 13 BGB) and the buyer is a consumer (§ 13 BGB) after two years – and in all other cases after one year.
All limitations of liability, including limitation periods, shall be excluded except in the case of damage to life, limb and health of the purchaser for which the seller is responsible for the breach of duty and liability for any other damage resulting from intentional or grossly negligent breach of duty by the seller, his legal representative or his vicarious agent.
G. APPLICABLE LAW, JURISDICTION AND SEVERABILITY CLAUSE
Should one of the auction conditions be wholly or partially ineffective, the validity of the remaining conditions shall remain unaffected. In the place of the ineffective one enters an effective regulation, which comes closest to the ineffective content. The auction conditions are available in German and English. In the case of contradictions, the German version alone applies, in the case of interpretations, the German version is also to be used and governed primarily for the interpretation of the English version.
The place of jurisdiction for all disputes arising from the contractual relationship between the buyer and the organiser, ESI Trading GmbH, is the registered office of the organiser, insofar as the buyer is a merchant, a legal entity under public law or a special fund under public law or the buyer has no general place of jurisdiction in Germany.