1. Definitions and interpretation
Defines every term the rest of the document depends on, including auctioneer, seller, bidder, buyer, lot, catalogue, reserve, hammer price, buyer's premium, timed lot and close of sale. Sets the interpretation rules: headings, numbering, references to legislation, and how a conflict between these terms and any sale-specific rules is resolved.
Client to supply: the registered entity name and company registration number to be used throughout, the VAT registration number if the entity is registered, and the trading names or platforms these terms are intended to cover.
2. Registration and bidder verification
Sets out how a person becomes an approved bidder: the registration process, the identity and verification documents required for FICA purposes, the right to approve or decline a registration, and the treatment of any registration deposit. Must also deal with bidding on behalf of a company or another person, and the authority required to do so.
Client to supply: the exact list of FICA verification documents required from individuals and from juristic persons, the registration deposit amount or amounts and whether they differ by sale, the refund terms and timeframe for unsuccessful bidders, the approval turnaround NSB is willing to commit to, and the grounds on which a registration may be refused or a bidder suspended.
3. Conduct of the auction
Governs how the sale itself runs. Must cover the auctioneer's discretion over the conduct of the sale, bid increments, the treatment of reserve prices, the right to withdraw, combine, divide or re-offer lots, the resolution of disputed or tie bids, the refusal of a bid, and the reopening of bidding where a dispute arises. Must also address whether, and on what disclosed basis, the auctioneer may bid on behalf of the seller where that is lawful.
Client to supply: the bid increment table or the basis on which increments are set, whether reserves are disclosed to bidders and in what form, and NSB's intended position on seller bidding. Attorney to confirm what disclosure that position requires and whether it is permissible for each auction format NSB runs.
4. Bids are binding offers
Fixes the point at which a bid becomes an irrevocable offer and the point at which a contract of sale comes into existence. Must state this separately for each format NSB operates, since the fall of the hammer, the close of a timed online lot and the acceptance of a bid subject to confirmation are different moments. Must also deal with bids placed in error, withdrawal of a bid before acceptance, and the effect of a bid placed under a registered bidder's credentials.
Client to supply: for live, online, timed-online and on-site sales, the moment NSB intends the contract to form, whether any lots are sold subject to seller confirmation and within what period, and whether timed lots use an automatic extension rule when a bid lands close to the advertised closing time.
5. Buyer's premium, commission and VAT
Sets out everything the buyer pays on top of the hammer price and everything the seller pays out of the proceeds. Must state the buyer's premium and how it is calculated, any documentation or administration charges, the seller's commission basis, and the VAT treatment of each amount, including whether advertised prices are inclusive or exclusive.
Client to supply: the buyer's premium percentage and whether it varies by sale, asset class or format, the seller commission structure, every additional fee charged to a buyer such as documentation, registration or clearance charges, and the VAT position on each. Attorney to confirm the VAT treatment and the disclosure required at the point of bidding.
6. Payment terms and methods, and consequences of non-payment
Covers when the purchase price and all charges fall due, the payment methods accepted, the treatment of deposits paid on the fall of the hammer, and the rule that funds must reflect and clear before release of a lot. The non-payment side must set out what NSB may do if a buyer fails to pay, including forfeiture of a deposit, cancellation of the sale, resale of the lot, and recovery of any shortfall and costs.
Client to supply: the payment deadline in hours or business days from the close of the sale, the payment methods accepted and any excluded methods, the deposit percentage payable on the fall of the hammer, the interest or penalty rate applied to late payment, and NSB's intended position on resale of an unpaid lot and recovery of the shortfall. Attorney to confirm the enforceability of each consequence.
7. Passing of ownership and risk
States when ownership in a lot passes to the buyer and when risk in the lot passes to the buyer. These are two separate moments and the clause must deal with them separately, including the position between the fall of the hammer and full payment, and the position between full payment and physical removal.
Attorney to draft. Client to confirm the commercial intent only: whether risk is to sit with the buyer from the fall of the hammer or from payment, whether lots remaining on site after payment are insured by NSB, by the seller or by the buyer, and whether the position differs for on-site sales held at a seller's premises.
8. Collection, removal deadlines and storage charges
Sets the period within which a buyer must remove a purchased lot, the site access arrangements and hours for collection, and who bears responsibility and cost for dismantling, rigging, loading and transport. Must also deal with storage charges after the removal deadline, damage caused during removal, and the treatment of lots that are never collected.
Client to supply: the removal period in days from payment, collection hours and site access requirements including any induction or personal protective equipment rules, the daily or weekly storage charge after the deadline, who carries responsibility for rigging and loading, and the point at which an uncollected lot is treated as abandoned. Attorney to draft the abandonment and onward disposal wording.
9. Condition of lots, voetstoots sale and the buyer's inspection obligation
Deals with the basis on which lots are sold as they stand, the buyer's obligation to inspect before bidding, and the status of catalogue descriptions, photographs, hour meter readings, specifications and estimates. Must state what the buyer may and may not rely on, and must be drafted consistently with the warranty and liability clause and with the Consumer Protection Act position.
Client to supply: the viewing arrangements offered before each sale, whether condition reports or inspection records are issued and in what form, and the source of any hours, mileage or specification data published in the catalogue. Attorney to confirm the extent to which a voetstoots basis can be relied on given NSB's buyer profile and the Consumer Protection Act.
10. Warranties, exclusions and limitation of liability
Sets out which warranties are given, which are excluded, and how NSB's liability is limited. Must address liability for the description and condition of lots, for loss or damage while a lot is in storage, for injury or damage occurring on a sale site, and for indirect or consequential loss. This is the highest risk clause in the document and the one most likely to be tested.
Attorney to draft in full. No cap, exclusion or indemnity should be adopted from any template, competitor site or prior document without legal advice on its enforceability. Client to supply the public liability and other insurance cover actually in place, since the drafting must sit consistently with it.
11. Online bidding, platform availability and technical failure
Governs bidding through the website or any online auction platform. Must deal with account credentials and responsibility for bids placed under them, connectivity and latency, the consequences of an outage or interruption during a live or timed sale, the auctioneer's discretion to pause, extend, reopen or re-run an affected lot, and the absence of any guarantee of uninterrupted availability.
Client to supply: the online bidding platform or platforms that will be used and a copy of each platform's own terms, so the two documents can be reconciled rather than left to conflict. Client to confirm NSB's intended remedy where a lot is affected by an outage: extension, reopening, re-run or cancellation.
12. Cooling-off, the Consumer Protection Act and where it does and does not apply
Explains the position on cancellation rights after a sale, and identifies when a transaction falls inside consumer protection legislation and when it does not. NSB sells to a mixed audience that includes juristic persons, trade buyers and private individuals, so the clause must distinguish between them rather than state one blanket rule.
Auctions in South Africa are subject to the Consumer Protection Act 68 of 2008 and the auction regulations made under it. Attorney to confirm which provisions apply to each of NSB's auction formats and to each category of buyer, and to draft this clause accordingly. Nothing about the effect of the Act is stated on this page, and no summary of it should be written by anyone other than the attorney.
13. Breach, cancellation and remedies
Covers what happens when either party fails to perform. Must deal with notice of breach and any period allowed to remedy it, the right to cancel, the remedies available to NSB and to the seller, the recovery of costs including legal costs, and the survival of clauses that must continue to operate after cancellation.
Attorney to draft. Client to confirm the notice period it wants to allow for remedy of a breach, and the address and method to be used for the delivery of formal notices.
14. Dispute resolution, governing law and jurisdiction
States the law that governs the agreement, how disputes are to be resolved, and the forum in which proceedings may be brought. Must also record the address at which each party accepts service of legal documents and notices.
Client to confirm the commercial preference only: whether disputes go to mediation or arbitration before litigation, and which court NSB wishes to nominate. Attorney to draft the governing law, jurisdiction and domicilium wording. No jurisdiction, forum or governing law is stated on this page.
15. Amendments to these terms
Sets out how these terms may be changed, how bidders and sellers are notified of a change, and which version applies to a sale that is already under way or a lot that has already been bid on. Should also fix a version reference and an effective date so that the applicable version can be identified after the fact.
Client to supply: how changes will be notified, whether an archive of superseded versions will be kept, and the version and effective date convention to be printed at the top of the published page.
