Effort, expertise and expense go into breeding foals and developing young horses. The success of its foals and young horses promotes a breeder’s business and enhances its reputation leading to future enquiries and sales. The names given to progeny are used to promote the breeder because in some way they identify the breeder. This article will refer to some legal steps that a commercial breeder can take to preserve the existing name of a foal or young horse and to retain future naming rights of unnamed progeny, to protect the breeder’s recognition in the market place through the use of names.
We need to recognize that horse naming is an administrative step of a breed or sporting body. The law does not lay down specific legal requirements to observe let alone require anything like a court order to name or effect a change of name of a horse. So a breeder must create legal rights around the appellation of a foal or young horse to base, in the first instance, self-help remedies to correct naming infractions and, secondly, to enable those rights and remedies to be enforced legally in a court if necessary.
Usually the breeder will register the foal’s name with one of myriad horse breed societies of which the breeder is a member. The name and details recorded are for the purposes of that society and its members and to safeguard the purity of the breed. The record does not itself create any general legal rights or obligations except perhaps as between the members of that society if its constitution and rules have anything to say about names and changes of name. A society, by its rules, might prohibit one member from changing the name of a horse bred by another member without the breeder’s consent. But if the buyer of a foal or young horse is not a member or does not want to continue any association with the breed society, then the society’s requirements will be irrelevant.
Take the example of a buyer who wants to compete the horse, not breed with it. Equestrian Australia requires registration of horses before they can compete, principally for its own identification purposes. A buyer of a horse which is unregistered can register the horse under a preferred name (if available) or, if already registered, change the registered name. There is no inquiry by a state branch into the reasons or justification for a change of name nor permission required of the original breeder. Microchips, not names, serve the purpose of uniquely identifying horses for a host of reasons including veterinary care, bio-security and disease control and international travel.
The most effective way to maintain a name is to sign up the buyer to a requirement not to change or attempt to change the horse’s name from the one designated by the breeder, for any purposes. If the foal is unnamed, the buyer should be obliged to register only a name approved by the breeder. The breeder should also impose special binding conditions, such as: Ownership of the horse does not pass until the approved name is duly entered in the records of particular named societies or organizations; the buyer will oblige any subsequent buyer to observe similar obligations including to bind any further subsequent buyer to the same conditions; and that the breeder is subrogated to the rights of the buyer against any subsequent buyer of the horse so that the breeder can stand in the initial buyer’s shoes to enforce the retention of name obligation. Such sale conditions are legally enforceable by a court or appropriate civil claims tribunal.
To give extra strength to these conditions, the buyer should irrevocably and unconditionally authorise the breeder to do various things in the event of breach of the naming obligations. Those things will entail what is necessary to correct the record, for example, to complete, sign and lodge any form to reverse the non-conforming name of the horse, to disclose any information or material to achieve that purpose, and to waive on behalf of the buyer any entitlement to be informed of the corrective action. An attorneyship clause like this should be prepared by a lawyer to ensure it is valid and comprehensive to guarantee its recognition by the relevant authority, like a state branch of EA.
Breeders of foals and young horses need to get on the front foot by creating binding commercial agreements with clauses that operate to retain names and exert control over attempts at renaming.
13 February 2017
© 2017 Michael Mackinnon, Solicitor & Independent Counsel