Given the number of complaints that continue to emanate from buyers unhappy with their horse purchase due to failed expectations (like bad or nuisances behaviours or vices) here are some top tips from a legal view to aid redress against the seller.
#1 Blood Sample
A buyer should request permission for a vet to take blood samples from the horse for storage and future analysis if there is an unexplained disparity between the horse’s behaviour and responses at an inspection compared to those at its new home. A range of substances can be administered to a horse to dull it down. There might be no clinical indications of them or, if there are, they might be subtle and go unnoticed by a novice buyer. The buyer should get prior written confirmation from the seller that the horse is not on any medication and that no drug or medicinal substance will be in the horse’s system on the day of the inspection. Such confirmation, in combination with a future positive test result from a sample, would justify a refund.
#2 Representations by the Seller
Sales are usually formed in the course of conversations with the seller. Verbal information from the seller about the horse will invariably contain a representation (statement of fact) critical to the decision to buy. The information is unlikely to be verifiable or to be difficult to evaluate from an inspection (if any) so it is accepted in good faith. Later, when doubts arise over the veracity of the information, the seller will usually deny making the representation or dispute that the buyer has relied on it.
So to prove the making of a representation, the buyer should ask for any matters of fact to be recorded and transmitted to him or her (emails or SMSs are admissible evidence of communications in a Court) prior to the decision to buy the horse. And to prove reliance on the representation, the buyer should confirm before the decision is made to buy the horse that the information received is an important factor in deciding to buy the horse.
Even better, the buyer might prepare a written list of concise questions for the seller to answer with a note added to warn the seller that answers must be truthful and accurate because reliance will be placed on them in the decision to buy the horse. If the seller is unwilling to co-operate, the buyer is on notice that there may be a problem lurking.
#3 Don’t Sign Without Reading
If the seller asks the buyer to sign a receipt for the payment, the paper must be read fully and comprehended. While it is helpful to have a record of the seller’s name and an acknowledgment of payment for the horse, often there is a statement included that the buyer is now the owner of the horse “with all vices and faults, if any, known and unknown” or similar wording. Although the legal value of this sort of acknowledgement is dubious, such words will embolden the seller to reject blame if there is later a problem of temperament or behaviour. Faced with such wording, the buyer should be quick to ask the seller for disclosure of any vices and faults. If the seller responds that there are none, then the words should be ruled through and replaced with “The seller has advised the buyer that the horse has no vices or faults” (or any specific issue of concern) and both parties should then sign alongside those words.
#4 Praise and Complaint
Sellers are quick to deny fault and assert that any problem must have been caused by any number of factors, such as the buyer’s lack of riding experience, ill-fitting tack, fatigue or injury during in transit, altered feed, and so on. Such responses are understandable if weeks or months have elapsed without word from the buyer, or if the buyer has foolishly decided to convey immeasurable satisfaction and delight with the horse soon after taking possession of the horse and continuing for days or even weeks afterwards.
A buyer should refrain from passing on any opinion about the horse for at least a few weeks whilst the horse settles in and has been ridden a number of times. Statements against interest (that is to say, effusive expressions of contentment on the part of the buyer indicating all is well between horse and buyer) can be legitimately relied on to challenge the buyer’s claim that there was a problem when the sale was made. In Court, it is the point of time that the sale and purchase was concluded which is the legal focus for determination of the facts about the horse’s condition relative to the buyer’s claims.
If these tips are followed, the buyer will avoid a problem horse altogether or be in a much better legal position to get a refund.
14 March 2018
© 2018 Michael Mackinnon, Solicitor & Independent Counsel