24 October 2015

Termination agreement horse

Category: Buying a horse

What are the main issues when a non-conformity of a horse is brought forward? A horse must be in conformity with the sale agreement. An equine lawyer often has to establish if that is the case. Whilst the industry operates to a large extent on the basis of verbal agreements, evidence problems occur frequently. A written agreement on the sale of the horse is always advisable. A veterinary report on the horse as well. The purchaser of the horse has a duty to investigate, so a veterinarian report covers that duty of the Buyer. Normally, the Buyer bears the burden of proof when he believes that the horse is non-conform. In order to terminate a sales agreement of a horse due to a default, the buyer needs to prove the following:

1) The severity of the default and the justification of terminating the sales agreement; and

2) That this default was present upon delivery of the horse.

However, the rights available to a buyer of a horse may vary dependent upon whether the purchaser was acting in the course of a business or as a private entity. Read also: cancel contract horse.

Consumer law: legal presumption for seller horse

A legal presumption may apply in a consumer transaction. This means if a deviation from what has been agreed upon reveals itself within a period of six months after the supply of sold object, then it is presumed that the horse, at the moment that is was supplied, already was not in conformity with the consumer sale agreement, unless the nature of the object or the nature of the default opposes to this presumption.

As a result, the Seller is then obligated to prove that the horse was conform the agreement upon delivery date (contrary to the basic rule). This may lead to unsolvable evidence difficulties for the seller in an equine court case.

Evidence of problems after the horse sale

In order to determine whether or not the seller has failed to comply with the agreement, the legitimate expectations must be deducted. In case no written purchase agreement is available, the legitimate expectations of the horse can be derived from several other factors, such as price category, purchaser usage and the extent of the veterinary examination.

Escape routes for horse seller

A commonly used escape route of the seller regarding the legal presumption in consumer transactions is the ‘unless-clause’ (article 7:18 sub 2 DCC). Meaning that the legal presumption does not apply if the nature of the object or the nature of the default opposes to this presumption. The ‘nature of the default’ can be considered in the situation in which it’s entirely clear that the default is caused through the actions of the buyer. In that case, the legal presumption in consumer transactions may not be applicable. The courts in the Netherlands however do apply the presumption in the law and usually put the onus on proof on the Seller of the horse.

Lameness, fault or condition horse after sale

Whether or not the nature of the default blocks the legal presumption depends on the specific circumstances. The following is an example of a default which is presumed to be long term (i.e. generally not caused though actions of the buyer): the horse suffers stable vices or abnormal compulsive behavior, such as: cribbing and windsucking. Stable vices are namely considered to be long term and generally do not occur within a short period. The aforementioned highlights the relevance to determine the specific condition of the horse and the importance to consult a Dutch equestrian lawyer. The rights available to a buyer of a horse may vary if the buyer was acting in the course of a business or as a private entity.