Legal Questions and Answers for the Horse Community

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By
Rachel Kosmal McCart
     
 
 
Please note that the following information is not intended to be legal advice or to create an attorney client relationship. Before relying on any information, you should contact an attorney licensed to practice in your state. See also BAEN's legal disclaimer. To submit a question for this column, email your question to info@equinelegalsolutions.com. Please identify yourself as well as any other parties involved so that we can be sure to avoid conflicts in interest in answering your question. We will keep all parties? identities confidential. By submitting your inquiry to this column, you grant permission for your inquiry to be published and for your inquiry to be edited for length, grammar or clarity. Due to space limitations, we cannot publish an answer to every question we receive, but we do try to provide an unpublished answer by email or telephone. View previous Q&A's in the Legal Solutions Archives.
 
 
 

Buyer's Remorse

Q: I recently purchased a two-year-old AQHA filly for my 8-year-old daughter to ride. The filly is quiet and kind, my daughter really enjoys her and even won her class of 17 entries last weekend. However, we noticed after bringing the filly home that she has a back leg that's crooked. She's not lame on it, it's just crooked. Our vet says it could cause joint problems for her in the future. We contacted the seller and asked her to take the horse back and she wouldn't. We didn't have a contract with the seller and we didn't get a vet exam before buying the horse.

A: For better or worse, the convention in the horse industry is that unless you have an agreement to the contrary and/or the seller makes certain specific representations, all horse sales are "as is" and final the moment the buyer delivers payment. Most horse sellers will not take returns. This is part of why I recommend a written purchase/sale agreement for every transaction - that way, no one is surprised after the transaction is complete. I also highly recommend a prepurchase vet exam for every purchastee, no matter how inexpensive the horse is. For more tips on buying a horse, see "Buying a Horse" on Equine Legal Solutions.

With that baseline established, let's address what representations the seller made and what her disclosure duties were. The seller knew that you were purchasing this horse for an 8-year-old, so if she knew of any reason why the horse might be dangerous or otherwise unsuitable for a child, she should have told you. For example, if the horse bucked, reared or ran off with her rider, that behavior would make her unsuitable for a child. It's an exceptional two-year-old that's a suitable child's mount. However, because your daughter is apparently having no problems controlling the mare, it doesn't appear that the seller misrepresented the mare as being suitable for a child.

The seller also advertised the mare as a show prospect. If the mare were unsound when the seller sold her to you, that would make her unsuitable as a show prospect in any discipline. However, despite the crooked back leg, the mare is currently sound, and in fact, your daughter is already winning with her in the show ring. Clearly, she is a suitable show prospect, so the seller did not misrepresent the mare in that capacity.

Was the seller required to disclose that this mare had a crooked back leg? I believe that the seller was not legally required to disclose this fact, because it did not affect the mare's current use or soundness. Sellers are not required to make predictions about a horse's long-term soundness. For more information on a seller's legal duties, see "Selling a Horse" on Equine Legal Solutions.

However, I strongly recommend that sellers advise all buyers to obtain a prepurchase veterinary examination and that your sale agreement specifically state that the horse is sold "as is" and that you offered the buyer an opportunity to obtain a prepurchase exam. When buyers decline a prepurchase exam, I recommend that you include a sentence in the sale agreement noting that you have offered the buyer the opportunity to obtain a prepurchase exam and that the buyer has declined, then have the buyer initial that section. One caveat, however - prepurchase exams are not a guarantee of future health or soundness, they are simply a veterinarian's opinion regarding the horse's current condition. Here's an excellent article on what to expect from a prepurchase exam.

In the sale/purchase agreement, I also find it helpful to include descriptions of any behavior, health and soundness issues that the horse has had ?that way, the buyer cannot come back later and complain that the seller did not disclose these facts to them. It's also good information for the buyer and can help them make a better decision. Equine Legal Solutions offers customized sale or purchase agreements at an affordable fixed price. We like to help our clients prevent disputes, and good contracts help minimize disputes by clarifying the terms of the deal and making sure both parties have an opportunity to understand those terms before entering into the deal. In 90% of the disputes that we handle, there is no written agreement between the parties, but in the situations where there is a written agreement, we can generally resolve disputes much more quickly (and affordably!).

 
 
 
About the Author: Rachel Kosmal McCart, the founder of Equine Legal Solutions, is a lifelong horsewoman and experienced lawyer. Equine Legal Solutions, the Legal Counsel with Horse Sense TM , offers a full range of legal services for the horse community, including dispute resolution, customized contracts and risk management assessment.
 
 
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