Legal Questions and Answers for the Horse Community

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By
Rachel Kosmal McCart
     
 
 
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When a Gelding is Not Really a Gelding

Q: Six months ago, I bought a 13 year old gelding advertised as well broke.?The seller told me the horse had been gelded at age 5, before she bought him. This gelding? attacked one of our other geldings out in pasture and nearly killed him. We did not have a prepurchase veterinary exam before buying the horse. When I had the vet out, he did a hormone test and determined that the gelding?was really a stallion. We had the horse operated on and the vet removed a retained testicle. Do we have any recourse against the seller?


A: Generally speaking, in horse sales transactions, the industry standard is buyer beware,? and horses are sold as is.?However, several factors can overcome an as is?presumption, such as if the seller failed to disclose a material defect they knew about at the time of sale. Another factor is if the seller intentionally and significantly misrepresented the horse. Here, we have a horse the seller represented to be a gelding, and that representation turned out to be false. The representation is clearly material, as most buyers shopping for a gelding specifically do not want a stallion. The pivotal question is whether the seller knew the horse had a retained testicle at the time of sale.

Here, the seller has said the horse was gelded prior to her purchase. Assuming that is true, how would the buyer be able to prove what the seller knew? If the seller had her own reasons to suspect that the horse might have a retained testicle, she might have had the horse tested herself, and veterinary records would reveal the results. However, because veterinary records are the property of the person who orders the veterinary treatment (and not the current owner of the horse), the veterinarian would not release records to the buyer without the sellers permission. If the seller didnt give her permission, the buyer would have to subpoena those records in court.
Now, was well broke?a material misrepresentation? Equine experts could argue the finer points of what that phrase means, but generally, it implies a horse that is well trained to ride. Here, the buyer doesnt mention the horses behavior when ridden, so we will assume that the horse really is well broke?and therefore not materially misrepresented in that fashion.

Lets say the buyer is able to determine with some certainty that the seller knew the horse had a retained testicle and didnt disclose it. What would the buyers damages be? The horse is now a true gelding, but it cost the buyer money for the operation. Presumably, the buyer also had vet bills for the horse who was almost killed. The buyers damages would be the sum of those two sets of vet bills.
Can the buyer return the horse for a refund? At this point, the buyer has made a material change to the horse (i.e., gelding it), so it would be impossible to rescind the sale contract and put the parties back into the positions that they were in prior to the sale. In addition, courts are typically more likely to award money damages than equitable remedies (i.e., making a party do something).

 
 
 
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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