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Cheltenham Auction Conditions of Sale

1. Entry

(1) A horse shall be entered for a sale on completion of an Entry Form by or on behalf of the Vendor and upon payment by the Vendor to the Auctioneer of the prescribed entry fee.
(2) In the event that the Vendor wishes to place a reserve on a Lot, the amount of the reserve must be specified in Pounds on the Entry Form.
(3) The Vendor warrants to the Auctioneer and to the Purchaser that, on the day of the Sale, the horse will have no contagious diseases, and produce a valid passport or identity certificate.

2. Selling & Withdrawal Fees

Horses will be sold in £s Sterling.

(1) The Vendor will pay to the Auctioneer a commission of 3% on the hammer price for each Lot plus VAT.
(2) Commission is payable in full by the Vendor to the Auctioneer even if a horse is subsequently returned by the Purchaser to the Vendor in accordance with the complaints procedure hereunder or for any other reason.
(3) Vetting Fees. The vendor will be deemed responsible for the vetting costs of the on site pre-sale vetting. If the horse is then subsequently sold in the sale this vetting cost will be refunded to the vendor and the purchaser will be liable for this cost, which will be added to his account when settling payment of their purchase.
(4) A horse, having been entered for a Sale, may only be withdrawn prior to the Sale for veterinary reasons if no valid veterinary certificate is produced to the Auctioneers satisfaction then a withdrawal fee of £500 +VAT plus debarment from forthcoming Brightwells Sales and Horses UK events will be implemented to the vendor.
(5) When a Lot is bought-in 100% by the Vendor and Brightwells are notified by the conclusion of the sales session in which the Lot was offered the Lot will be published as a ‘Vendor’ sale and the Vendor will pay Brightwells 1% of the sale price.
(6) When a Lot is unsold the vendor will pay Brightwells 1% of the reserve price if the reserve exceeds £20,000
(7) There will be a minimum commission of £200 for each Lot sold or bought in.

3. Catalogue Description

(1) The Auctioneer accepts no responsibility for the accuracy of any particulars of a Lot given in the catalogue. The Vendor is solely responsible for any catalogue description of a Lot.
(2) Upon receipt of a catalogue, the Vendor undertakes immediately to check the accuracy of the relevant catalogue description of the Lot and to notify the Auctioneer immediately in writing of any correction, amendment or addition that needs to be made to the catalogue description.
(3) The following words have the following meanings when used in a catalogue description: Unbroken - must be quiet to lead and to halter.
(4) The Auctioneer may amend or add to any catalogue description during the course of a Sale and may declare a Sale to be subject to veterinary examination or not during the course of a Sale, in which event any announcement by the Auctioneer takes precedence over any entry in the catalogue.
(5) A mare described as “IN FOAL” or “BELIEVED IN FOAL” constitutes a warranty that the mare is in foal and it is the responsibility of the vendor:
(a) In the case of a mare covered during the Thoroughbred covering season preceding the sale to lodge with the Auctioneers before the date advertised fore the sale, a Certificate of that Covering.
(b) In the case of a mare described “In Foal” or “Believed in Foal”, to send with the horse a Certificate of Pregnancy signed by a veterinary Surgeon and dated not more than 4 weeks before the sale.

4. Conduct of the Sale

(1) The Auctioneers may at their absolute discretion:
(a) Refuse to accept any bid or bidder.
(b) Regulate the bidding as the Auctioneer sees fit.
(c) Arrange, consolidate or withdraw any Lot.
(d) Cancel or postpone a Sale on account of bad weather or other supervening cause. In the event that a Sale is cancelled, moved or rearranged, the Auctioneer shall not be liable to pay compensation to any Vendor bidder or any other party.
(2) The Vendor reserves the right to bid through the Auctioneer acting as the Vendor’s agent.
(3) The Purchaser shall be the highest bidder. In the event of a dispute between two or more bidders as to which is the Purchaser, the Auctioneer shall have the right to declare the Purchaser or, at the Auctioneer’s discretion, immediately to re-offer the disputed Lot for sale.
(4) The Purchaser shall immediately on the fall of the hammer inform the Auctioneer of the Purchaser’s name and address and provide any proof of identity that the Auctioneer may require. Failure in this respect entitles the Auctioneer immediately to offer the Lot for re-sale and the original Purchaser shall be liable to make good any difference in price to the Vendor.
(5) Any Purchaser bidding as agent for a Principal shall be deemed to have bid on his own behalf as well as on behalf of his Principal and the highest bidder shall be personally liable along with the Principal to the Vendor.

5. Payment

(1) The Auctioneer, at the Auctioneer’s discretion, may require the Purchaser to pay a deposit of 20% of the price of the horse immediately following the sale.
(2) The Purchaser shall pay the Auctioneer in full for the price of the horse within 2 hours of the completion of the sale. Payment in this context may include the tender of a cheque in the full amount although the Auctioneer in the Auctioneer’s discretion may refuse a cheque in which event the Purchaser must tender payment in some other manner.
(3) The Auctioneer shall pay the Vendor the price of the horse less Auctioneer’s commission and any other outstanding charges and expenses due from the Vendor to the Auctioneer within 28 days of the date of the Sale, provided that:
(a) In the Auctioneers opinion the Purchaser is a bona fide Purchaser and was capable of making a contract i.e. being sound of mind, not in collusion with the Vendor and not under the influence of drugs or drink etc.
(b) the Auctioneer has been paid in full for the price of the horse by the Purchaser, any cheque tendered by or on behalf of the Purchaser having cleared; and
(c) the Purchaser has not initiated the Complaints Procedure set out below. In the event that the Purchaser has initiated the Complaints Procedure, the Auctioneer shall retain the price of the Lot pending the outcome of the Complaints Procedure.
(4) If the Purchaser fails to make a payment in full for the Lot, and in the Auctioneers opinion the Purchaser is a bona fide person (3. a) and fails to make payment in full for the Lot or Lots the Auctioneer may, at his absolute discretion, resell the Lot and the Purchaser shall be liable for any shortfall in price , and any associated expenses connected with such resale.

6. Delivery and Risk

(1) Horses sold as they stand shall be at the risk of the Vendor until the fall of the hammer, whereupon risk shall pass to the Purchaser.
(2) The Vendor shall deliver the horse to the place of the Sale and shall provide the horse with adequate fodder and water for the duration of the Sale and shall provide the horse with a serviceable headcollar. In the event that the Vendor fails to provide the horse with a serviceable headcollar, the Auctioneer may provide the horse with a headcollar and charge the Vendor for the same.
(3) Title in the horse shall not pass to the Purchaser until the Purchaser has made payment in full for the horse by means of cleared funds. Until payment in full by means of cleared funds is made, title shall remain with the Vendor.
(4) The Purchaser shall not be entitled to take delivery of the horse until payment in full for the horse has been made. The Auctioneer may at the Auctioneer’s sole discretion allow the Purchaser to take delivery of the horse upon the tender by the Purchaser or on his behalf of a cheque in the full amount of the price.
(5) The Purchaser, subject to payment in full, must take possession of the horse by 1.00 pm on the day following the Sale.
(6) In the event that a horse is not sold, the Vendor shall take back the horse from the Sale premises by 1.00 pm on the day following the Sale.
(7) The Purchaser authorises the Vendor and the Auctioneer as agent for the Vendor to enter upon the Purchaser’s land to take collection of any horse in respect of which the Purchaser has taken delivery but for which the Purchaser has not paid in full.

7. Returned Horses

(1) Lots may be returned by the Purchaser to the Vendor if the Purchaser of any Lot sold with a pedigree establishes that the pedigree is inaccurate.
(2) Subject to Conditions 8 and 9, Lots may be returned by the Purchaser to the Vendor in accordance with the Complaints Procedure if the Purchaser establishes that the description given in the catalogue in respect of a horse is inaccurate.
(3) Lots may be returned by the Purchaser to the Vendor subject to the Complaints Procedure set out below if the horse:
(a) is a wind-sucker (i.e. swallows air whether in association with grasping fixed objects with incisor teeth or not); a crib-biter is not returnable unless the crib biting is associated with wind sucking, in which case the Lot is returnable as a wind-sucker.
(b) is a weaver;
(c) exhibits box walking;
(d) is a shiverer;
(e) has been tubed, unnerved or otherwise operated upon for unsoundness of wind;
(f) is a male horse (other than a foal, a yearling before the 1st July of its yearling year) which does not have two testes fully descended to and fully palpable within the scrotum at the time of the Sale or is or shall be deemed to be a rig or cryptorchid;
(g) is in the Forfeit List, or
and if the horse has not been described as such in the catalogue or verbally by the Auctioneer at time of sale.

8. Sold Subject to Pre-sale Veterinary Examination

(1) Lots will be offered for sale with a pre-sale veterinary certificate, if they are specifically stated to be sold subject to a Pre-Veterinary Certificate, as per condition 8 issued by a panel of Veterinary Surgeons appointed by the Auctioneers.
(2) The Certificate of the Veterinary Panel is completed by a Veterinary Surgeon or Surgeons appointed by the Auctioneers following a clinical examination carried out in accordance with the standard procedure recommended by the Royal College of Veterinary Surgeons.
(3) The veterinary certificate must not be relied upon in any way as indicating any matter other than that of being a record of clinical examination made by Auctioneers’ Veterinary Panel. THE VETERINARY CERTIFICATE WILL BE VALID FOR THE DATE AND TIME OF EXAMINATION ONLY.
(4) This examination shall be a clinical examination and shall not include any radiological or other specialised techniques. It shall not be concerned with the accuracy of any other statement concerning any particular Lot whether contained in the catalogue or any veterinary certificate.
(5) The decision of the Veterinary Surgeon carrying out the examination shall be final and binding as between the Vendor and Purchaser.
(6) The Auctioneers shall in no way be responsible for the findings of the Veterinary Surgeon appointed to carry out this examination.
(a) The Purchaser is responsible for the cost of the Pre-Sale Veterinary Certificate.

9. Sales Subject to Post Sale Veterinary Examination

(1) Sales are only subject to veterinary examination if they are specifically stated to be “subject to veterinary examination as per condition 9 conditions of sale” or similar in the catalogue or if this is stated by the Auctioneer during the course of the Sale.
(2) If a horse is sold subject to veterinary examination, the horse should be submitted for veterinary examination by the Purchaser on the day of the Sale.
(3) The sale catalogue shall set out the procedure to be followed by the Purchaser on submitting the horse for veterinary examination on the day of the Sale.
(4) The purpose of the veterinary examination is to check the accuracy of the physical description of the horse given in the catalogue. The veterinary examination will not cover the matters referred to in condition 7(3) above, save that the veterinary examination will be conclusive in relation to the “potential” of the horse.
(5) At the end of the veterinary examination, the Veterinary Surgeon will provide the Purchaser with a certificate stating that the horse does or does not comply with the physical description of the horse given in the catalogue.
(6) In the event that the veterinary certificate stipulates that the horse complies with the physical description given in the catalogue, this shall be conclusive as between Vendor and Purchaser.
(7) In the event that the veterinary certificate states that the horse does not comply with the physical description given in the catalogue the Purchaser shall not be liable to pay the price for the horse and is entitled to the return of any deposit that may have been paid by the Purchaser.
(8) In the event that a Purchaser fails to avail himself of a veterinary examination on the day of a Sale in the case of a Horse sold subject to vet, the Purchaser cannot thereafter make complaint of matters, which would have been covered by a veterinary examination

10. Sales as they Stand

(1) All horses not specifically stated in the catalogue or by the Auctioneer during the sale to be sold subject to veterinary examination shall be sold as they stand.
(2) In the event that a horse is sold as it stands, the Purchaser is not to rely upon any physical description of the horse contained in the catalogue but is to rely upon the Purchaser’s own examination and judgement in relation to those matters.
(3) The Purchaser may still rely upon the Complaints Procedure in the case of a Sale as it stands save that the Purchaser cannot complain of matters in respect of which a veterinary examination could have taken place had the horse been sold subject to veterinary examination.

11. Subject to Post Sale Veterinary Examination of Wind Only

(1) Sales are only subject to veterinary examination of wind only if they are specifically stated to be “subject to veterinary examination of wind only as per condition 11 Conditions of sale”, or similar in the catalogue, or if this is stated by the Auctioneer during the course of the Sale.
(2) If a horse is sold subject to veterinary examination of wind only, the horse should be submitted for veterinary examination of wind only, by the Purchaser on the day of the Sale.
(3) The sale catalogue shall set out the procedure to be followed by the Purchaser on submitting the horse for veterinary examination of wind only on the day of Sale.
(4) The purpose of the veterinary examination is to determine whether the horse does or does not make a noise in its wind when actively exercised on the lunge. The veterinary examination will not cover the matters referred to in condition 7(3) above, save that the veterinary examination will be conclusive in relation to whether the horse has or has not passed its wind test.
(5) At the end of the veterinary examination, the Veterinary Surgeon will provide the Purchaser with a certificate stating that the horse does or does not make a noise in its wind after active exercise.
(6) In the event that the veterinary certificate states that the horse has failed the wind examination then the Purchaser shall not be liable to pay the price for the horse and is entitled to the return of any deposit that may have been paid by the Purchaser.
(7) In the event that a Purchaser fails to avail himself of a veterinary examination for wind only, on the day of a Sale in the case of a horse sold subject examination of wind only, the Purchaser cannot thereafter make complaint of matters, which would have been covered by this examination.

12. Any Lot Described as a Horse in Training

(a) Which is a Whistler and/or Roarer as hereinafter defined is returnable in accordance with Condition 7 unless so described or described as being "heard to make a noise" without qualification. In the case of a Horse in Training a Whistler and/or Roarer is a Lot which can be heard to make a characteristic abnormal inspiratory sound when actively exercised and which has Laryngeal Hemiplegia (Recurrent Laryngeal Neuropathy) when examined with the endoscope.
(b) Which has been tubed or otherwise operated upon for the correction of Whistling and/or Roaring is returnable

13. Drugs

This Condition shall apply where a horse is described as a Horse in Training.
(1) A Lot shall be returnable to the Vendor in accordance with this condition where Brightwells decides in its absolute discretion that a blood/urine sample taken from the said Lot in accordance with this Condition contains anti-inflammatory drugs of their metabolites.
(2) A Sample will be taken from a Lot in accordance with this Condition Where:
(a) the Purchaser, in compliance with sub-condition 13(b) hereof irrevocably instructs Brightwells to take a sample from the said Lot for the purpose of this condition and to have the sample tested for the presence of proscribed drugs, and
(b) the Vendor complies with sub-condition 13(3a) hereof and,
(c) a member of a veterinary team appointed by Brightwells takes a sample from the said Lot while it is in a holding area designated by Brightwells.
(2) Where a Purchaser wishes to give an instruction, he shall do so immediately after the purchase of a Lot by signing to this effect on the Purchasers Slip supplied by Brightwells who will not accept instructions given in any other way.
(3) Where an instruction is given by the Purchaser:
(a) The Vendor shall deliver the said Lot directly from the Sale Ring to the designated holding area in accordance with Brightwells directions and for this purpose the Purchaser agrees that notwithstanding that risk in the said Lot passes to him, he is not entitled to take possession or control of the said lot until after the Lot is released from the designated holding area. Where Brightwells decides that the Vendor has failed to deliver the said lot as aforesaid the said lot shall be returnable to the Vendor in accordance with this Condition. In after one hour from the delivery of the Lot to the designated holding area a sample has not been taken from the said Lot notwithstanding that the said veterinary team have used such reasonable endeavours as are commensurate with the circumstances including the number of lots from which samples are to be taken and their behaviour, the contract of sale shall stand and the Purchaser shall be bound to keep the said Lot and pay the full amount of the purchase price therefor
(4) Brightwells shall exercise its absolute discretion in making a decision under this condition. Brightwells decision shall be given by notice to both Vendor and Purchaser as soon as reasonably possible after the Sale of the said Lot, shall be final and shall be binding on both Vendor and Purchaser and Brightwells shall not be responsible for any loss or expense incurred by any party arising out of its decision.
(5) The Purchaser expressly acknowledges that a Lot is only returnable to the Vendor under this condition if it is decided by Brightwells that the sample taken from a Lot contains the specific level of any proscribed drugs and further acknowledges that the presence of any of the drugs in the sample at a level below the specific level is not a ground for return of a Lot to the Vendor. Unless so returnable the Purchaser shall be bound to keep and pay the full amount of the purchase price for the Lot.
(6) (a)Where the Purchaser elects to return the Lot to the Vendor under this Condition such election must be made by returning the Lot to Brightwells in writing of such election within 7 days of the date on which notice of Brightwells decision is given to the Purchaser. Failure to comply with this sub-section shall be absolute bar to any claim that the Purchaser is entitled to return the Lot under this Condition and the Purchaser shall be bound to keep the Lot and pay the full amount of the purchase price therefor. Any transport, keep and other costs incurred by the Purchaser in connection with the Lot shall be for the Purchasers account in any event.
(b) Upon Brightwells having acknowledged receipt of the Purchasers' notice in accordance with (6a) Brightwells shall give to both Vendor and Purchaser that the contract of sale in respect of the said Lot has been determined.
(c) The Lot shall be at the Purchaser's risk in all respects form fall of hammer until notice is given by Brightwells. For the avoidance of doubt, in any case where Brightwells has given such notice the Lot is thereafter at the risk of the Vendor.
(d) if the Purchaser has elected to return the Lot the Vendor in accordance with this condition the Vendor shall: Pay to Brightwells on invoice a sum equivalent to the commission that would have been payable under these conditions of Sale had the contract of sale not been determined by the Purchaser. Pay to Brightwells on invoice its charge for taking and testing the sample and in making and giving its decision under this Condition. Indemnify Brightwells against all costs claims demands actions and expenses arising out of or in connection with its decision under this Condition.
(7) The Purchaser shall pay Brightwells on invoice its charge for taking and testing the sample and making its decision under this Condition.

14. Liability of the Auctioneer

(1) The Auctioneer acts as agent of the Vendor and the Auctioneer gives no warranties of any kind to the Purchaser.
(2) The Auctioneer does not accept any liability for:
(a) the description or pedigree of the horse given in the catalogue;
(b) the physical condition or performance of the horse sold;
(c) the payment of the price by the Purchaser;
(d) the return of any horse by the Purchaser to the Vendor;
(e) the administration of the Complaints Procedure beyond the appointment of an arbitrator in accordance therewith.

15. Complaints Procedure

(1) The Purchaser shall notify the Auctioneer if the Purchaser claims to be entitled to return a horse to the Vendor in accordance with condition 7 above or for any other reason orally by 5.00 pm on the fourth day following the Sale.
(2) The Purchaser shall follow up this oral notification to the Auctioneer with written notification to the Auctioneer to be received by the Auctioneer within seven days from the date of the Sale. The written notification by the Purchaser to the Auctioneer shall set out the grounds upon which the Purchaser claims to be entitled to return the horse to the Vendor.
(3) Where appropriate, the Purchaser shall submit, along with his written notification, a veterinary certificate confirming any matters in respect of which complaint is made. The failure to submit a veterinary certificate in circumstances where such a certificate is appropriate will mean that the Purchaser’s complaint will not be further entertained and the Purchaser shall pay the price for the horse in full.
(4) In the event that the Purchaser fails to make oral or written notification of his complaint within the above timescales, the Purchaser shall not be allowed to return the horse to the Vendor but must make payment for the horse in full unless the Purchaser can demonstrate to the satisfaction of the Auctioneer that it was not reasonably practicable for the Purchaser to discover the complaint and to notify the Auctioneer of the same within the above timescales. However, in no circumstances whatsoever may the above time limits be extended beyond a period of 14 days after the date of the Sale.
(5) On receipt of a written complaint together, where appropriate, with a veterinary certificate, the Auctioneer shall send a copy of the complaint and the veterinary certificate to the Vendor and the Auctioneer shall appoint a suitable person to act as Arbitrator. The task of the Arbitrator will be to examine and determine the complaint. The name of the person appointed by the Auctioneer to act as Arbitrator shall be notified by the Auctioneer to the Vendor and to the Purchaser. The Auctioneer shall thereafter have no further responsibility in respect of the Complaint Procedure.
(6) The examination and resolution of the complaint shall be under the control of the Arbitrator and the Vendor and Purchaser shall comply with all directions that may be given by the Auctioneer in respect of the complaint.
(7) The Arbitrator may require, before proceeding to examine and determine the complaint that the Arbitrator’s fees and expenses shall be paid in advance. The Vendor and Purchaser shall thereupon each pay one-half of the sum stipulated by the Arbitrator.
(8) The Arbitrator may direct that the horse shall be subject to such trial as he may direct and the Vendor and Purchaser shall lend their full co-operation to such a trial.
(9) If either the Vendor or the Purchaser fails to comply with a direction of the Arbitrator or fails to pay any sum ordered to be paid by the Arbitrator, then the Arbitrator may at his own discretion decide not to proceed with the examination and determination of the complaint and may, if the Vendor is in default , order that the horse be returned to the Vendor or may, if the Purchaser is in default, order that the Purchaser pay the full price to the Vendor.
(10)Upon the determination of the complaint, the Arbitrator may at his discretion order that the unsuccessful party pay to the other all the costs and expenses associated with the Complaints Procedure.