Horse trainers derive a living from breaking, educating and training horses. Some also pursue a business of selling those horses for clients. Armed with an outline of the horse’s history, the trainer embarks on an intensive programme to bring the horse back into work or to iron out any problems. The trainer uses his or her considerable skill and knowledge to these ends. But one of the difficulties facing the trainer is that due to on-going training costs, owners don’t usually allow enough time for any issues to be completely and effectively addressed and for consolidation of improvements. The pressure cooker of intense work can, unfortunately, leave problems unresolved, or exacerbate them or even trigger new misbehaviours and injuries.
Buyers may feel a degree of confidence purchasing from a professional due to a belief that the horse for sale must be well trained. But unless the horse has been with a competent and accomplished trainer for a lengthy time (months, not weeks) this expectation can be unjustified. Trainers are engaged by owners to assist in the sale of horses and in doing so earn sales commission on top of training fees. As owners also want to minimise fees, trainers must do the best they can with the horse within the owner’s timeframe.
Trainers need to recognise the legal implications of the role undertaken in a sales campaign.
First, if the trainer is not the ‘seller’ of the horse in a legal sense, he or she won’t be subject to the Australian Consumer Law guarantees of ‘acceptable quality’ and ‘fitness for’ any disclosed ‘purpose’. If the buyer negotiates with the owner over price, pays the owner directly and receives from the owner any papers for transfer of registration of the horse in the affairs of a stud book or sporting organisation, the owner (not the trainer) is the seller in the eyes of the law. A trainer should steer clear of engaging with a buyer in any way that could constitute him or her the ‘seller’ of the horse to reduce legal exposure. If the sale is documented, it will clarify of course that the owner is the seller, but regrettably, still to this day, few sales seem to be in writing. And the guarantees are not, in point of law, attracted to a private sale (between 2 persons in a non-business context) even though a professional trainer conducting a business was engaged to train and present the horse for sale. The onus is on the buyer to seek and obtain the express agreement of the owner to any warranties or conditions relating to the sale.
Secondly, the trainer should document his or her engagement by the owner to show the horse to potential buyers. Proper authority, disclosure of history (including medical), permission to allow veterinary examinations and investigations, fixing a reserve price, commission entitlement and training fees and when and how they are to be paid and an indemnity in case of a legal claim, are some important factors to address. Advertising should be complete, truthful and approved by the owner before publication.
Thirdly, as agent of the owner, any actionable misrepresentations about the horse made by the trainer will bind the owner and could undo the sale under the general law. A trainer must be careful, honest and factual in describing the attributes and training of the horse and be able to prove them if challenged. Blind faith in what the owner claims about the horse and its history is unwise and should not be repeated unless the trainer is confident that the claims can be substantiated. Written representations about the horse should be resisted despite a buyer’s wish to interact by sms or email. The Australian Consumer Law also contains proscriptions against misrepresentations about standard, quality and grade of a horse and against misleading and deceptive conduct more generally. A professional trainer must comply with these statutory laws around fair dealing or risk liability for breach.
Fourthly, a buyer who seeks or appears to seek the trainer’s professional opinion on the suitability of the horse, especially one for a child to ride, might claim that the trainer owed the buyer a duty of care to disclose everything negative about the horse and especially bad or dangerous behaviours or tendencies. A trainer should dispel immediately any notion that he or she is there to help the buyer make the right decision. He or she must strongly resist giving any opinion on the suitability of the horse to the rider. The trainer’s client is the owner, not the buyer.
By encouraging the buyer to inspect the horse (as often as desired), to bring the rider’s coach to help evaluate the horse and combination, to engage directly with the owner about any queries or concerns, the trainer can persuasively argue that the buyer did not rely on the trainer or that it was unreasonable for the buyer to do so.
Fifthly, at the end of the day, a responsible trainer must not over sell a horse because death and serious injury can occur where the rider is evidently incapable of managing the horse. Trainers must be prepared to say to a buyer “Sorry, this horse is not suitable for you” and confirm it in writing. But if, despite this indication, the buyer still wishes to make an offer, the owner should be warned that the sale is risky.
Trainers who engage in horse selling as an adjunct to their training businesses must carefully manage owners’ expectations, navigate their role to minimise potential legal liabilities to buyers, and deal honestly and fairly with buyers who will be vulnerable and easily influenced because of the trainers’ professional standing. These are demanding tasks that, if handled well, underpin a valuable reputation.
11 November 2019
© 2019 Michael Mackinnon, Solicitor & Independent Counsel