Buying and Selling Horses; your rights and the law

Peter Stafford, Director at Cartmell Shepherd, discusses current legislation and explains the rights and responsibilities of both buyer and seller.....

Since I started working in our equine law department, I have come across a number of enquiries relating to disputes involving the purchase and sale of horses. It is key that you are aware of their rights when purchasing a horse and what you can do about it should the horse not be of the character, abilities and health expected.

Most disputes over the purchase of a horse usually relate to the horse not being as described and/or not being suitable for a particular discipline and/or having a medical condition that was not described. In dealing with a dispute the key factor to look at is whether the horse was purchased from a dealer or a private seller.

Dealer purchases - Dealers selling horses in the course of a business are regulated by the Sale of Goods Act 1979 (“the Act”). The Act implies a number of conditions of sale on a dealer and the three key conditions that a dealer must adhere to:-

(a) The horse must be as described. If the horse is not as described, it is a breach of trading standards. In effect, any 'goods' that are sold including horses must correspond with their description. So, if the horse was sold as being 15 hands and when you checked at home, it turned out to be only 13 hands, it is not as described.

(b) The horse must be of satisfactory quality in relation to the description, price and all other relevant circumstances. A number of factors are taken into account when assessing this but, for example, it should be free from defects such as lameness unless otherwise disclosed as part of the sale.

(c) The horse must also be fit for the purpose for which it is sold. If you are purchasing a horse for a particular discipline and level, say affiliated BS show jumping at fences over 1.20m and the seller knew you were looking for such a horse, but the horse has insufficient scope and ability for those heights, it is not fit for purpose.

There is one pre-condition that may give a dealer a suitable defence for not adhering to any of the implied conditions above. This is if the condition of the horse is brought to the buyer’s attention and/or the horse is examined prior to the purchase and the examination ought to reveal any defects, then the dealer may be off the hook.

Private seller - When purchasing a horse from a private individual who is not selling through his business, a principle known as 'buyer beware' applies. This puts the onus of satisfying yourself as to the suitability of the horse for you onto you, instead of on the seller. You have less protection therefore, if you buy from the man on the street than if you buy from a dealer.

An aggrieved purchaser can usually only rely on misrepresentation to return the horse and retrieve their money. Misrepresentation provides far less protection than the Act referred to above.

Unless a written agreement is drafted between the two parties, the only evidence that can be relied upon is oral representations, which are not as substantive or solid as written evidence. An email or text exchange may help but a signed agreement is always preferable.

To bring a successful claim in misrepresentation, the purchaser must show that they relied upon the buyer’s representations, that such representations were misrepresentations (made either deliberately or negligently) and as a result, the purchaser has suffered a loss. In effect, there are three hurdles to overcome, which at times can be trickier to prove than would be required when bringing a claim under the Act against a dealer.

If the sale were conducted on an oral basis and there is nothing in writing to prove what was said, at court the parties can only rely on witness evidence as to what they and the other person said and on the evidence of other people present when the purchase occurred.

It can be difficult to bring a successful misrepresentation claim and it gets more complex once you look at the detail of the representation. For example, if the seller stated that the horse is lame because it had knocked its leg on the side of the wagon the day before but there is no permanent injury or condition causing lameness and it transpires that it does have a such an injury or condition, this is clear misrepresentation. However, care must be given if the horse is described in loose terms rather than being pinned down to a specific ailment, illness or problem.

How to avoid a legal battle

There are a number of key issues to remember when purchasing (and selling) a horse:-

1.    If you purchase your horse from a dealer this gives you greater protection under the Act as referred to above. To strengthen your position, it is also good to have the sale in writing but always check that you are happy with the contents of the agreement. If you are unsure as to the contents of the agreement, it is worth seeking legal advice.

2.    If you decide to purchase privately, consider a written contract of sale. This can be done in as much or as little detail as either party wishes, but in order to avoid disputes further down the line, it is worthwhile putting as much detail in the contract for sale as possible.

3.    If you are entering into a written contract for sale, it is beneficial to seek legal advice on the contract. This may increase the initial purchase price (in that you may have to pay legal costs); however in the long run it can reduce the hassle, cost and risk of litigation down the line, which can be considerable.

4.    If you decide not to enter into a written contract for sale, then it is beneficial to have a witness come along with you. Additionally, regardless of how expensive the horse is, have it vetted before purchasing it by your vet or an independent vet (As readers are aware there are levels of vetting and I would suggest the ‘gold standard’, including a blood test). NOT someone instructed by the seller. The vet will charge, but is liable if they miss something.

When having your horse vetted you may also wish to discuss obtaining X-rays with your vet. Whether you want to obtain these and how many will depend on what you want to use the horse for, and insurers will sometimes require them depending on the value of the horse and for example if you intend to insure for loss of use. They are normally carried out after the 5 stage pre-purchase vetting.

(BEWARE – if the vet misses something obvious that a routine check would show, then there is likely to be no liability on the seller (be it a dealer or a private seller) and the only recourse for you would be a potential negligence claim against the vet.)

5.    You should explain to the seller and the vet the reasons for purchasing the horse and what you expect from it. You can ask the seller and the vet if the horse is appropriate and if possible get these statements in writing.

6.    Try the horse out before you purchase it. It can be beneficial to loan the horse from the seller for a period of say one week. This would assist in allowing you to determine if the horse is right for you and if it has any physical problems which you do not want to take on. If you do consider taking the horse on loan, the horse would need to be insured by you and obviously the consent of the owner is needed which may, at times, not be forthcoming.

7.    If you have purchased a horse from a dealer and it becomes clear it has physical and behavioural issues making it unsuitable for you, the dealer should offer a refund or an alternative horse. You should not delay beyond a reasonably short period before contacting the dealer. DO NOT let the dealer sell on your behalf, as you may be liable to the new purchaser for the defects in the horse.

8.    If you are a seller, then be as honest as possible. Never the say the horse is 100% safe in traffic, to box, to clip or to shoe. This is leaving yourself open to litigation, as with all animals, we cannot be 100% sure of how they will behave, particularly with less experienced or confident handlers or riders. By all means, describe the experience the horse has had with you but do not represent that everyone will have the same. Keep it factual - the cross country or show jumping experience, but nothing about its attitude or scope.

The key factor is to remember to document any purchase/sale of a horse and in case anything does go wrong with the purchase, keep all correspondence on durable means. This will assist you later on should you wish to bring a claim against the seller or if you are a seller defending a claim against vexatious purchaser.

To contact the equine specialists at Cartmell Shepherd Solicitor, telephone 01228 516666 or visit www.cartmells.co.uk