An accurate assessment of the temperament of an equestrian horse under saddle is difficult to make. A performance record will reveal its willingness (obedience and submission) and training level at competition, where scores reflect an objective view of these qualities. A horse with an inconsistent record or a non-current one can indicate a problem of temperament, so caution is required. Regardless, however, of any performance record, a potential buyer will prudently inspect and ride the horse. This interaction is meant to provide some insight into the horse’s temperament and its training level. But a single inspection, in the horse’s usual surroundings affords, in reality, a limited means to assess a horse fairly and accurately. And surprisingly often, amateur riders in a big country like Australia decide to buy sight unseen, so only engage with the horse for the first time after paying for the horse.
After buying a horse, the buyer can sometimes be confronted all too soon with problematic (sometimes dangerous) behaviour. The buyer will usually get back on the horse after an incident, unless it undermined the buyer’s confidence altogether, before contacting the seller. The seller, if queried, will often attribute the problem to one or more of several possibilities: the distance that the horse has travelled to its new home; possible injury during travel; the need to settle in after arrival, to adjust to new surroundings; an ill fitting saddle; an altered diet; an unfamiliar riding surface; the rider’s aids; his or her competency and so on. Some further time will elapse, however, before the buyer inexorably turns to the seller to request a refund because the horse is not the same as inspected or not the horse that was advertised!
In many cases the undeniable fact is this: A horse with a bad or difficult temperament is unsuitable for an amateur owner rider. So what things should a buyer consider to decide if the seller is a fault and liable to refund the price paid?
For a start, search for any texts or emails sent to the seller in the days, even weeks, after taking delivery of the horse which attest to how perfect the new horse has proved to be! The seller will seise on any such laudatory statements to refute a claim that there was a problem with the horse at the time of sale. From a legal point of view, no buyer should tell the seller anything about the performance of the horse under saddle until the buyer has had a chance to ride the horse at least a half dozen times.
Second, from a legal point of view, it is prudent for a buyer not to delay engaging with and riding the horse in its new environment at a reasonable level of intensity to identify any potential issues. Convey any issues to the seller in writing the same day. A paper trail evidencing the complaint from the earliest time helps to link the problem to the time of sale.
Third, have an experienced rider evaluate the horse. Ask for the rider’s opinion on how likely it is that the problem existed at the time of sale.
Fourth, ascertain if the seller sold the horse in the course of a business of selling horses. Was the seller a stud, a dealer or a professional? In a business sale, the seller guarantees under the Australian Consumer Law says that the horse is an acceptable quality and fit for any disclosed purpose of the buyer, at the time of sale. The right to reject a horse exists if the horse was not of an acceptable quality or unfit for purpose, at that time. As habitually unsafe behaviours take time to develop, it is usually not too hard to gather the expert evidence to prove that the behaviour of the horse witnessed by the buyer existed at the time of sale. The nature and extent of any inspection of the horse by the buyer can be put in issue by the seller, as exculpatory of fault of the seller, on the basis that the buyer knew or ought to have known of the problem. This is not of course a reason to refrain from inspecting a horse, just a risk factor to consider. But it means an inspection should be thorough and demanding so as to stand the best chance of revealing any behaviours and resistances of concern.
In the case of non business sellers, the buyer’s legal recourse is usually confined to a claim couched in terms of misrepresentation, in the absence of a written contract which sets out the circumstances where a refund is claimable. Claims of misrepresentation are difficult to establish at law: Legal advice should be sought to evaluate the facts available to prove such a claim.
If the right to a refund exists, the buyer must not delay. The right will expire at some point in time, depending on individual circumstances. The Australian Consumer Law calls it the ‘rejection period’. In simple terms, this is the period in which it would be reasonable to expect that non-compliance with the guarantee would become known. If the rejection period expires, the buyer is only able to pursue compensation for the difference between the price paid and the real value of the horse.
A buyer should exercise due diligence before and after deciding to buy a horse. Before purchase, engage someone independent and experienced to ride the horse and put it under pressure: how the horse reacts will be telling. Use of a written contract to buy a horse from a non-business seller which contains warranties about temperament and training level and the right to a refund for breach of the warranties. Ride the horse promptly after taking possession, as delay can prejudice the legal right to a refund.
18 June 2017
© 2017 Michael Mackinnon, Solicitor & Independent Counsel