Recent equine news reports have been full of the court case involving Eric Lamaze and a $572,000 dispute. Whist disputes on this scale are quite rare, disputes over alleged mis-selling are becoming commonplace in the UK.
There appear to be a number of factors behind the rise in claims. First, surely, must be the cost of buying – and keeping – horses. The more money that is at stake, the less people are prepared to write difficulties off to experience. Secondly, society at large has changed. Whether or not the popular press are right to call it “Americanisation”, it is undoubtedly the case that we now have a blame culture, where everything must be somebody’s fault, and where there is blame there is a claim. The old rule of “caveat emptor”, let the buyer beware, appears to have disappeared.
The difficulty with the expectation that every horse will be perfect at everything, regardless of the purchase price, is two-fold: the first thing is horses are animals, not machines, and prey animals at that. We have taken them away from the environment they evolved in, but we cannot take away their instincts and very nature; and the second is that the law really isn’t that simple.
The equestrian industry is on a par with car sales in the complexity of the law. There are business-to-business transactions, business-to-consumer sales, and consumer-to-consumer deals, and no clear definition of when a person is acting in the course of a business and when they are not. It is simply impossible to deal in generalities; each case must be considered on the specific facts (and that is why asking for advice on social media platforms is dangerous). Successive Parliaments have legislated to protect consumer rights, nut the applicability of the statutes is not straightforward.
To add to the complexities of business/consumer transaction legislation, there are the fundamental legal principles of contract law. Every law student studies the basics of offer and acceptance, consideration and intention to create legal relations, followed by implied terms, misrepresentation, mutual mistake and so on. What they don’t appreciate is that the cases they learn from the Victorian era are still as relevant today, and that on top of that, and even with text messages, messenger and WhatsApp, the vast majority of negotiation of horse sales are done by phone or in person. Even if the actual law were straightforward, garnering the necessary evidence is not.
The sensible thing, therefore, is to have a written contract for the sale and purchase of the animal which explicitly sets out the important issues:
- Identity of the parties and the animal, and whether or not the seller is acting as a business;
- Purchase price;
- Position in respect of vetting requirements and outcome and disclosure of previous veterinary issues;
- Position in respect of any deposit and conditions upon which it will/will not be returnable;
- Arrangements for collection/delivery and risk and insurance in transit if the seller delivers;
- Care, livery cost, insurance and risk if there is a delay between payment and collection/delivery;
- The horse’s experience, suitability for the buyer’s declared use, known vices or problems, and confirmation of the buyer’s understanding of and agreement to any issues; and
- Changing of passport details from the seller to the buyer.
If something then goes wrong it is a much simpler (and cheaper) matter to sort it out.