CONDITIONS OF SALE
These are the Conditions of Sale for the 2017 AUCTION SALE (“the sale” and / or “the auction”) of Warmblood Sport Horses by AGRIVAN FARMING (Pty) Ltd trading as CALLAHO Warmblood Sport Horses (“CALLAHO”), to be held on the Studfarm on 3rd of June 2017.
1.1. The Conditions shall be binding on every bidder or buyer of horses at the sale;
1.1.1. Any person who by whatever generally accepted means clearly makes a bid on a horse presented for sale at the Auction shall be deemed to be a buyer and therefore deemed to be thoroughly familiar with and to have agreed to the conditions of sale as laid out herein.
1.2. Any entry made in the sales documents of CALLAHO shall be prima facie proof of the sale and purchase of a horse in terms of the Conditions and therefore constitute an acceptance of the Terms and Condition by the buyer concerned.
1.3. For the purposes of this agreement
1.3.1. “sale documents” shall include any of the following documents:
completed and/or signed by or on behalf of the buyer –
- a credit request;
- an application for a buyer’s card;
- an entry in the Auction Slip;
- CALLAHO’s sales invoice;
- a promissory note;
- any power of attorney or agent authorisation form,
1.3.2. “auctioneer” shall mean the auctioneer(s) appointed by CALLAHO for the conduct of the sale;
1.3.3. “horse” shall mean a warmblood sport horse and “lot” shall have a corresponding meaning;
1.3.4. “auction hall” shall mean the enclosure ring in and/or from which the horses are paraded and sold:
1.3.5. “VAT” shall mean value added tax;
1.3.6. “purchase facility” shall mean the maximum amount any buyer will be allowed to bid for at this sale;
1.3.7. any reference to “purchase price” shall be deemed, unless the context requires otherwise to exclude VAT and administration fee.
1.3.8. any reference to “purchaser” in the Conditions and/or the sale documents shall be deemed, unless the context requires otherwise, to be a reference to “buyer”;
1.3.9. any reference to “buyer” shall be deemed to include a “bidder” where the context can be interpreted to appropriately include both.
1.3.10. any reference to CALLAHO, or the auctioneer shall be deemed, unless the context requires otherwise, to include a reference to the respective agents, representatives and employees of CALLAHO or auctioneer.
1.3.11 a horse shall be deemed “sold” immediately upon THE COMMENCEMENT OF THE FALL OF THE HAMMER.
1.4. Headings have been inserted in the Conditions for convenience only and shall not affect the interpretation or meaning thereof.
1.5. Words importing one gender shall imply both genders and words importing the singular shall include the plural and vice versa.
1.6. CALLAHO reserves the right to alter or amend the Conditions as it deems necessary.
2. NO WARRANTIES OR REPRESENTATIONS
2.1. Except as specifically provided for in the Conditions, the sale of all horses shall be “voetstoots”, on an “as is” basis, including all faults and defects, patent and latent.
2.2. Neither CALLAHO nor the auctioneer makes or gives any representation, warranty or guarantee, expressed or implied, whatsoever,
2.2.1. in respect of the correctness of any statement or information whatsoever pertaining to a horse including any statement or information contained in any sale documents or advertising/sale catalogues, and neither CALLAHO nor the auctioneer shall be liable for any error in any such statement or information;
2.2.2. as to the merchantability, fitness for any particular purpose, soundness, condition or quality of any horse offered for sale.
2.3. Neither CALLAHO nor the auctioneer accepts any responsibility for any defects or errors in relation to the pedigree, height, description, condition or other particulars relating to a horse, including, without limitation, the performance of a horse.
2.4. It is the sole responsibility of an intending buyer to check the inoculation and/or the vaccination status of any horse which he may be interested in bidding on/buying prior to the bid/purchase and to satisfy himself that they meet all the legal and his own requirements.
2.5. The buyer acknowledges that he has made his/her purchase on full reliance of his/her own or independent advisor and inspection, that he has not relied on any statement or representation made by or on behalf of CALLAHO or the auctioneer. Furthermore, the buyer acknowledges that no compensation shall be payable by CALLAHO or the auctioneer for any faults, imperfections, conditions or other defects.
2.6. The hores are sold as inspected and tested by the buyer; no liability is assumed for the horse’s status of health, and CALLAHO is not liable for the accuracy of the veterinarian inspections and the corresponding evaluations of independent veterinarians.
2.7. Prior to auction all horses are thoroughly examined by the veterinarian according to standard protocols. Various X-ray images are made of each horse: lateral views (1st to 3rd phalanx) of the front and back feet, special examination of the front feet (navicular bone– oxspring method), hocks at 2 angles on the same plane as well as two views of the stifle. The results of these examinations are written down in a report.
2.8. In addition, these X-ray images will be made available at all major veterinary practices in South Africa. If not in the possession of your appointed Veterinarian, they can be requested by such veterinarian directly from CALLAHO by email to firstname.lastname@example.org.
2.9. A written report is available regarding the veterinary history of each horse. This report includes the evaluation of the X-rays, the experiences of the veterinarian regarding the particular horse with comparable X-ray results from previous occasions (where applicable), the historical health of the horse and the general veterinary status of the horse.
2.10. The report about the examinations and X-rays are at prospective buyer’s disposal, at the disposal of their representatives, agents, advisors and veterinarians. They may acknowledge, analyse and check the information on their own responsibility prior to the auction, on auction day, by consulting with the official veterinarian on site.
2.11. The results of veterinary examinations, their statements and evaluations are independent services of veterinarians. No contractual promise by CALLAHO is made, since these veterinarians are independently working experts.
3.1. The parties acknowledge that announcements are made from the auctioneers rostrum before the commencement of the sale and from time to time during and after the sale. CALLAHO disclaims all responsibility for any claims or damages suffered by any person on account of not having heard such announcements.
3.2. The highest bidder whose bid is accepted by the auctioneer, shall immediately become the buyer and therefore the owner of the horse; provided that, if a dispute arises between two or more bidders in respect of the sale of a horse, the auctioneer may, prior to the conclusion of the sale, and in his sole and absolute discretion:
3.2.1. re-auction the horse in question; or
3.2.2. declare who the buyer of the horse is.
3.3. The decision of the auctioneer shall, in the circumstances specified in 3.2 above, be absolute, final and binding on all parties.
3.4. Direct telephone bidding will be allowed and accepted only in circumstances where:
3.4.1. the caller has registered as a buyer and obtained a valid buyer’s card beforehand, and
3.4.2. the caller is not physically present on the premises of CALLAHO, and
3.4.3. the CALLAHO Management has agreed in writing that such bidding may be made, and
3.4.4. the caller communicates only to the assigned telephone bidder during the bidding process.
3.5. The auctioneer shall determine and regulate the advance of the bidding and shall be entitled, in his sole discretion, to ignore or reject any bid, without giving any reasons for such action. The amount of the bid shall exclude VAT, auctioneer’s commission and insurance.
3.6. When the horse is sold the buyer shall sign the Auction Slip forthwith as acknowledgement of purchase.
3.7. The auctioneer may withdraw any horse from the sale without giving reasons for doing so.
4. EXPORT AND IMPORT REQUIREMENTS
4.1. Any buyer who is not a South African citizen shall lodge an acceptable letter of credit-standing from his bankers with CALLAHO prior to the sale.
4.2. The buyer of any horse requiring to be exported or imported (whether internationally and/or inter-provincially) shall be responsible for ensuring that all requirements necessary for the transport, export or import of such horse are met. The buyer shall not be absolved from complying with his obligations, in particular his payment obligation, in terms of the Conditions by virtue of an allegation of impossibility of performance or force majeure in regard to compliance with the necessary requirements.
The physical address provided by a buyer in his application for a buyer’s card shall be deemed, for the purposes of the Conditions, to be his chosen domicilium citandi et executandi.
6. RISK, OWNERSHIP AND MAINTENANCE COSTS
6.1. All risk in respect of a horse sold at the sale shall pass to the buyer “on the commencement of the fall of the hammer”, at which time the buyer shall forthwith be responsible for the care, keep, custody, control, insurance and security for the horse and for all expenses relating thereto and bear the risk of injury to, sickness or death of the horse.
6.2. The buyer agrees to release, defend, indemnify and hold CALLAHO, its officers, employees, agents and representatives and the owners or operators of facilities in use by CALLAHO, harmless from all losses, damages, liabilities, expenses, claims, causes of action or legal fees arising out of or related to the possession, care, keep, custody, control or maintenance of any horse on which he is the successful bidder, including any claims arising out of injuries, sickness, death or damage caused by the horse after the fall of the hammer.
6.3. The buyer shall not allow or cause any horse bought in terms of the Conditions to become subject to any lien, hypothec or other form of security until such time as the debt has been settled in full. In the event of such lien, hypothec or other form of security arising, CALLAHO shall be entitled to act in accordance with 8.4.
6.4. Callaho shall insure all horses offered for sale at the auction on behalf of the buyer for a period of 7 days from date of the sale. Callaho’s interests shall also be endorsed on the policy.
6.4.1. Should the full purchase price of any horse remains unpaid after a period of 7 days, for any reason whatsoever, CALLAHO shall be entitled, at the cost of the buyer, to extend such period of insurance until such time as the purchase price is fully paid by the buyer.
6.4.2. A non-negotiable administration fee of 2.85% of the purchase price will be levied upon each horse sold on auction on behalf of Kuda insurance (0.35%) and auctioneer’s commission of 2.5% which is levied on behalf of the auctioneer(s).
6.5. Save as provided in these Conditions or unless other prior arrangements in writing have been made with CALLAHO, a buyer shall remove the horse purchased promptly from CALLAHO’s sales premises after the sale. Should a buyer fail to remove the horse promptly, CALLAHO may remove the horse from the sales premises at the buyer’s risk and expense or, alternatively, charge the buyer for stable space and keep, which is payable to CALLAHO prior to the buyer taking possession of the horse.
6.6. De Facto ownership in a horse shall only pass to the buyer upon payment of the full purchase price plus administration fee, notwithstanding that the buyer may have taken possession of the horse. Until the debt has been paid in full, the buyer shall not be entitled to have the horse registered in his name or that of his nominee, nor shall any passports, registration certificates nor any other documentation be handed over.
6.7. The buyer shall, until such time as the debt has been paid in full, keep CALLAHO advised of the physical address at which the horse purchased is being kept and CALLAHO shall have the right to inspect the horse at any stage prior to payment of the debt.
7. PARTICIPATION REQUIREMENTS AND PAYMENT
7.1. No prospective buyer shall be authorised to bid at a sale unless and until he is in possession of a valid and current buyer’s card issued by CALLAHO in respect of the sale in question.
7.2. Buyer’s cards are obtainable from the Auction Office on the day of the sale, where a copy of the buyer’s ID / valid passport is required.
7.3. Only the person to whom the buyer’s card is issued and whose signature appears on the card, shall be allowed to sign for the purchase on the Auction Slip. Where the signature on the Auction Slip is that of another person, CALLAHO shall be entitled to regard the sale as null and void in which event the horse shall be re-entered into the sales ring for re-auction.
7.4. CALLAHO shall only issue a prospective buyer with a buyer’s card on the following conditions:
7.4.1. CALLAHO will approve a purchase facility, the amount of which will be endorsed and authorised on the application for a buyer’s card;
7.4.2. CALLAHO shall, in its sole and unfettered discretion, be entitled:
126.96.36.199. to require any prospective buyer to lodge with CALLAHO a sum of money or bank-guaranteed cheque sufficient to cover the agreed purchase facility, and/or any agreed increased purchase facility, and/or deposit on such a facility; or
188.8.131.52. in exceptional or deserving cases, at its sole discretion, to waive, in writing, compliance with some or all of the provisions of 7.1, 7.2, 7.3 and 7.4 on such terms and conditions and for such period as CALLAHO may determine.
7.4.3. Buyers who have been granted a waiver in terms of 184.108.40.206 who bid on a horse but have not registered as such and are therefore not in possession of a of a valid and current buyers card, automatically and immediately, by virtue of their decision to participate in the bidding process, agree to and fully bind themselves to all the terms and conditions of the auction as detailed herein. Should an unregistered bidder succeed in purchasing a horse, such purchaser must without delay proceed to the auction office and complete a registration form and obtain a buyers card.
7.5. All horses bought at this sale must be paid for in full by the buyer prior to obtaining the required release permit. Purchases shall be paid by electronic transfer, bank guaranteed cheque or by irrevocable commercial letter of credit. In its sole discretion, CALLAHO may accept a non-guaranteed cheque but acceptance thereof shall not constitute payment until honoured by the bank on which the cheque is drawn.
7.6. CALLAHO reserves the right not to release a horse to a buyer, and to keep it stabled at its sales premises at the cost of the buyer, until payment by cheque from the buyer has been honoured and cleared by the bank.
7.7. Where a deposit is lodged with CALLAHO, CALLAHO shall deal with the deposit in the following manner:
7.7.1. should the prospective buyer not have purchased any horse the deposit shall be refunded to the prospective buyer on the Monday immediately following the auction.
7.7.2. should the purchase price/s in respect of the buyers total accepted bids should the purchase price in respect of the buyers purchase(s) be less than the amount of the deposit, the amount owing in respect of the purchase(s) will immediately be deducted from the deposit and the balance refunded to the buyer as soon as possible and no later than 14 days after the date of the auction to allow for administration of the sale;
7.7.3. should the purchase price in respect of the buyers purchase(s) exceed the amount of the deposit, then the deposit will be offset against the purchase price of the horse(s) bought;
7.7.4. The balance of the purchase price (“the balance”) after the deposit has been offset as envisaged in 7.7.3, shall be paid for as set out in 7.5.
7.8. Where a horse is purchased by any person who is not a South African citizen or permanently resident in South Africa, the purchase price shall be secured by an irrevocable commercial letter of credit in a form acceptable to CALLAHO.
7.9. No horse may be removed from the sales complex before a release permit in respect of that horse has been issued by CALLAHO. The release permit will only be issued if the horse is paid in full or if prior credit terms have been arranged and approved in terms of 7.5.
7.10. The buyer of a horse shall be obliged to pay any VAT payable in respect of such horse.
7.11. Payment may be made by telegraphic transfer (foreign) or direct bank deposit (local) or electronic transfer to:
Account No: 4072179829
Branch No: 632005
Details are to be faxed/emailed to CALLAHO immediately after payment (Fax 053¬email@example.com).
8. LEGAL REMEDIES, REPOSSESSION AND COSTS
8.1. The buyer agrees and acknowledges that in the event of:
8.1.1. the buyer materially breaching any condition contained in the Conditions;
8.1.2. the buyer dying;
8.1.3. the buyer’s estate being placed under any order of provisional or final sequestration, provisional or final winding-up or provisional or final judicial management, as the case may be; then and in that event CALLAHO shall, without notice and without detracting from any other remedies which may be available to it,
- be entitled to summarily cancel the sale of any horse to the buyer (in respect of which monies are owing by the buyer) and to repossess such horse from anyone in possession of it (“the repossessed horse”); or
- to claim specific performance of all the buyer’s obligations whether or not such obligations would otherwise then have fallen due for performance; in either event without prejudice to CALLAHO’s right to claim and recover damages for breach of contract.
8.2. In the event of repossession, CALLAHO may take all necessary steps, either by themselves or through servants or agents and enter upon any land or premises, to recover possession of the horse. The buyer agrees to voluntarily hand over the horse to CALLAHO or its agents or to instruct his employees, servants, trainer(s) or whoever is in possession of the horse to do so. All costs and expenses occasioned by such repossession shall be recoverable by CALLAHO from the buyer.
8.3. The buyer acknowledges and agrees that if for whatever reason he/she refuses to voluntarily hand over the horse, CALLAHO shall be entitled to immediately apply for and obtain a repossession order from a court of competent jurisdiction and that opposition to such application shall not be justified and shall attract an adverse costs order.
8.4. Where any person claims to have a lien over any horse in respect of which the purchase price has not been paid, CALLAHO has the right to settle such lien as it deems fit to recover possession of the horse. Any monies paid in discharge of any lien shall form part of the debt which CALLAHO shall be entitled to recover from the buyer in addition to any other amounts which may be payable.
8.5. Notwithstanding the cancellation of the sale by CALLAHO, CALLAHO shall be entitled to retain:
8.5.1. any sums paid by the buyer in respect of the debt; and/or
8.5.2. the deposit or any portion thereof which was offset against the purchase price; in reduction of damages, if any, which may be suffered by CALLAHO by reason of the breach by the buyer and the resultant cancellation of the agreement of sale.
8.6. The buyer renounces the benefits of the legal exceptions non numeratae pecuniae, non causa debiti, errore calculi and revision of accounts. The buyer acknowledges that he/she is acquainted with the full meaning and effect of these exceptions.
8.7. The buyer consents to the jurisdiction of the Magistrate’s Court in terms of Section 45 of the Magistrate’s Court Act No.32 of 1944 (as amended) having jurisdiction under Section 28 of the said Act, notwithstanding that the claim by CALLAHO exceeds the normal jurisdiction of the Magistrate’s Court as to amount. CALLAHO shall, in its discretion, be entitled to proceed against the buyer in any other court of competent jurisdiction notwithstanding the aforegoing.
8.8. Callaho reserves the right to refuse any buyer who has materially breached any condition contained in these Conditions of Sale the opportunity to bid or purchase a horse at the current auction or any auction held at any time in the future.
8.9. A certificate under the hand of CALLAHO or the Director of CALLAHO (whose appointment need not be proved) as to any amounts due and owing by the buyer in terms of these Conditions shall constitute prima facie proof of the matters therein states for all purposes including, without limitation, summary judgement and provisional sentence proceedings
9.1. Any person acting as an agent on behalf of a principal:
9.1.1. may be required, prior to his participation in the sale, to establish to the satisfaction of CALLAHO, his authority to so act and, if required, to furnish CALLAHO with the necessary documentation in substantiation thereof;
9.1.2. shall, if he is the buyer, disclose the name and address of his principal “at the fall of the hammer”;
9.1.3. shall be jointly and severally liable for the timeous fulfilment of all the obligations of his principal in terms of the Conditions, renouncing the benefits of division and exclusion.
9.2. No person acting as an agent and buying in his/her own name on behalf of a principal will be released from his responsibility to pay the debt owing to CALLAHO on account of his inability to secure payment from his principal or his principal defaulting on their obligations.
9.3. When an agent discloses his/her principal after purchasing a horse, there shall be no obligation whatsoever on CALLAHO to invoice his/her principal and collect the debt from such principal. If the invoice is sent to the principal, who defaults in paying the debt, the responsibility for payment remains with the agent who has purchased the horse in the sales ring, whose buyer’s card was used and who signed for the purchase on the Auction Slip.
9.4. No person, with a valid buyer’s card, who allows another person without a buyer’s card, to use his/her card to purchase horses and sign for the horses, will be released from his/her responsibility to pay the debt owing to CALLAHO on account of his/her inability to secure payment from such buyer.
9.5. Notwithstanding anything to the contrary contained in the Conditions, any person acting on behalf of another, shall be deemed to have full legal capacity to do so.
10. REGISTERED ADVISOR
10.1. For the purposes of the Callaho Auction the terms ‘advisor’ and ‘adviser’ are deemed to have the same meaning and describe a person who presents themselves to Callaho as someone who;
10.1.1. has a deep understanding of horses and/or breeding of horses.
10.1.2. has a professional level of experience and expertise in either one or more of the equestrian sport diciplines of Showjumping, Dressage, Eventing or Showing.
10.2. Furthermore, Callaho’s additional requirements for an advisor to qualify as such with the intention to claim advisory fees is as follows;
10.2.1. The advisor must be a person in good standing with Callaho and possess a sound and unblemished professional reputation.
10.2.2. The advisor must be physically present at a scheduled try-out or viewing session on the Callaho Studfarm prior to the auction and be seen by one of the Callaho management team members to be fulfilling the function of an advisor or consultant to their client.
10.2.3. The advisor registration form must be completed and accepted by the Callaho office before the commencement of the auction.
10.2.4. The advisor registration form must be completed in full and without omission and must clearly record: (a) the full details of the client on whose behalf they are acting as advisor (b) the name(s)/lot no(s) of all the horses that they are advising their client on.
10.2.5. The exact amount of the commission will be determined by CALLAHO at its sole discretion, after having established the bona fides of the advisor.
10.2.6. Payment of Registered Advisor’s Commission will take place within 14 days of the buyer having fully completed the payment obligations as stipulated in the Conditions.
10.2.7. If the advisor is acting on behalf of more than one client then a separate registration form must be completed for each client.
10.3 Callaho reserves the right to disregard any claim to the advisors commission of any advisor it has reasonable grounds to believe has not fulfilled their function as defined or who appear not to be acting in good faith.
All potential bidders please be aware of the following: Auctions are excluded from Section 55(1) of the Consumer Protection Act, 2008. (Act 68 of 2008), which expressly states that the cooling off period does not apply to goods bought on auction. Callaho would also like to bring to bidders attention that we will not accommodate ‘buyer’s remorse’. Any horse purchased on will be payable on fall of the hammer.