Over the years of horse stewardship I have bought and sold horses. Most of the time without any drama or concern. In the last 10 years I have noticed an increasing amount of angst and concern over purchases and sales from both buyers and sellers. Sometimes those concerns take on the costume of fraud. I say costume because without direct knowledge and facts it is difficult to say who is correct. Where does the responsibility start and where does it end when it comes to the sale of an equine? What is full disclosure? Is there a responsibility for “truth in advertising”? Is the seller responsible if the equine does not meet the implied or assumed desires of the buyer? Is the buyer responsible for accurately representing their intentions for the horse? Or is it simply buyer and seller beware?
Buyer: As a buyer I want to get the most “bang for my buck”. I search high and low for a prospect that will meet my needs whether it is in the show/competitive venue or as a trail/pleasure horse. Based on my needs which I may or may not share with the seller, if this horse does not meet those needs does that make the seller responsible?
Seller: As a seller I want to sell my horse for the best price while still assuring the horse will have a good home. Where does my responsibility end as it pertains to disclosure? Do I become responsible for the previous owner’s refusal to fully disclose the horse’s condition or training? What can I do to ascertain that the sale is above board?
Agent: As an agent in the sale of an equine, I want to get the best price for my client while maintaining integrity of sale. Am I responsible for breach of contract if the owner of the horse does not disclose all information? Where does my responsibility end and the responsibility of the owner take over?
I won’t be providing answers to the questions above. They were posed as fodder for thought.
Recently a local case was brought to my attention. This case while stressful for both parties damaged the seller irrefutably and endangered his family. This prompted me to re-visit past purchases and sales that I have been involved in or be acquainted with. Before I give you some examples I want to review some legal jargon that I found on the Internet. First let me say that without Equine Legal Counsel many of us would be in a world of hurt. None of the information in this article should be construed as legal advice or a method to avoid paying a good attorney. If you feel you need legal counsel, you probably do and should seek advice immediately.
I found relatively little information that governs the sale of horses. In 2008 Kentucky passed a law making it unlawful for an agent to represent both the buyer and seller. In Kentucky each sale for equines over $10,000 must be accompanied by a written bill of sale that is signed by buyer and seller and include the purchase price. In 2010 Florida passed a similar dual agency law with the caveat that it is permissible if both parties know and agree to the dual representation in writing. In California in 2010 passed a law stating that the buyer be provided with a written bill of sale that includes the purchase price and that it be signed by both buyer and seller. Texas does have the Texas Deceptive Trade Practices Act. The Thoroughbred Owners and Breeders Association has the Sales Integrity program as well the USHJA has a similar program. I believe AQHA has a Professional Horsemen’s Code of Ethics. I admittedly did not read up on all the programs so please feel free to take up where I left off.
I also ran across numerous stories about seller’s hiding a horses faults, buyers misrepresenting their needs, implied and expressed warranties. I found some accusations on different Internet sources that while wild with allegations did not provide proof of any misconduct or fraud. Most of those types of articles were written in the heat of the moment and without factual basis. The author often was not looking for a resolution but rather revenge. Again those types of articles were on both sides of the fence with a greater majority being on the buyer's side rather than seller's side.
Here are some examples. I have first hand knowledge of all of them. I will note which ones I was intimately involved. You be the judge. The facts as I know them are represented in each scenario.
1. Personal Experience. I purchased a mare for breeding and showing. Her purchase price at the time was the high end of market. She had a limited show record but no record as a broodmare. The mare was a disappointment in the arena as a performance horse but adequate as a halter horse. The mare was bred three times. All three times the foals produced had conformational issues which could be corrected with surgery. The first two breeding were with the same stallion. The third foal was from a different stallion. I ended up having the mare spayed and sold her as a pleasure horse. Six months after my purchase and unbeknownst to me, the breeder quit breeding the sire of this mare, gelded him, and dispersed all offspring from this stallion. Was the breeder legally required to notify me of these actions at the time they occurred? Had this breeder become aware of a much bigger conformation breeding problem?
2. Acquaintance Experience. A pony was purchased for my friend’s child. The pony had a stellar career as a hunter jumper mount. A vet check was organized, the trainer rode the pony, and the child rode the pony numerous times. A request for trial was denied but the buyer was allowed two weeks of trial at the owners barn. Thirty days after the purchase the pony died of congenital heart failure. The purchaser alleged the trainer and the owner did not disclose the condition.
3. Personal Experience. I leased a 4th level dressage gelding. He was in extremely poor condition. I purchased him as a rescue case a month later. As the price was so low I did not, at that time, have a vet check. The horse owner put in writing that the horse was a competitive 4th level mount. I did research on the horse by contacting former owners and trainers and was assured that as of 6 months ago the horse was a competitive 4th level mount. When I was able to begin riding him a few months after his acquisition it was evident he was not capable of 4th level and might never be again. A vet check indicated some long standing lameness issues which should have been recognizable by not only the last owner but trainers as well. So was the previous owner fraudulent in her representation of the horse? Or was I careless in my purchase?
4. Acquaintance Experience. A trainer’s client owned a young mare that was not suitable for the discipline the client was pursuing. The client had recently changed disciplines and given that her equine expenses had exceeded her husband’s expectations she was ordered to sell or dispense with the mare. Information provided by the owner indicated the mare kicked in her stall, had been difficult at the previous trainers but did not exhibit pain behaviors. Accompanying the mare were X-rays of the hocks and coffin bone which supported the stresses of stall kicking. The trainer purchased the mare for a nominal fee and put her up for sale. The mare was represented as having the potential for broodmare and had been ridden English and Western. There was no implication that this horse was suitable for upper level dressage. The trainer is not a dressage trainer. The buyer’s dressage trainer came out and looked at the horse. He and his assistant came back out and rode the horse. Subsequently, the buyer came out and rode the mare twice. The buyer made an offer on the mare with the blessing of her trainer. A vet check ensued with X-rays and the mare passed. The mare went home with her new owner. Three days later the buyer requested a refund stating the mare was not as represented. She further stated that information obtained from the original owner/breeder indicated the mare was unsuitable for any use to include breeding and/or riding of any kind. No documentation was provided to the trainer to support this statement. So who is responsible? The trainer for not disclosing information he was unaware of? The original owner/breeder who failed to provide the information to the trainer? Or was this an insurance issue and was the original owner/breeder the recipient of a settlement for loss of use? Or is this simply buyer’s remorse?
In each of the 4 scenarios there were two sides to the story. In all cases except for example 4 the parties involved resolved their issues either privately or with the other party. So let’s review the solutions/resolutions.
Example 1: I chose to spay the mare to avoid any additional offspring with poor conformation. The breeder ceased breeding the stallion and gelded him. The offspring were removed from her breeding program. I do not know if the offspring were bred.
Example 2: It is difficult to assign blame in the sudden death of a horse or pony. In this particular case, the trainer was able to locate a free lease for the child for the following season. The seller of the pony paid for a vet check and transportation costs for this new ride. While the purchase price of the dead pony was not returned the seller did make a good faith effort so the child had horse to show.
Example 3. I felt I had a good case for fraud or at the very least misrepresentation; however, my concern for a misused horse overcame my common sense. I could not in all good conscious return the horse to the previous owner. I did not follow the advice I so often give people about buying horses. My error and probably one I will repeat again if I see a horse in need. This horse is still with me and has a forever home.
Example 4. I listed this one last primarily because it had the most drastic and far reaching outcome. Had I been the buyer I would have contacted the seller, explained the situation and said I was getting another vet check from a different vet. I would also have contacted the insurance company. The option the real buyer took was one that had horrible side effects. She proceeded to vilify the trainer, verbally and in writing. She and the original owner/breeder harassed this individual via electronic media and in person. The results of the harassment and publicity resulted in physical and verbal threats to the trainer and his family from parties who jumped on the “bandwagon” and had no knowledge of the events. Investigation showed the buyer had two previous purchases which resulted in unsatisfactory outcomes similar to this one. Investigation showed the original owner/breeder had an insurance policy on the mare. No one won in this example except perhaps the original owner/breeder. The trainer is out of business and for the safety of his family has moved. The buyer is riding the mare as I understand but continues to speak ill of the trainer. The original owner/breeder may or may not have received an insurance payout. Interestingly enough, the purchase price of this horse was less than any of the others but ended up having far reaching detrimental impact.
So how can we as buyers and sellers avoid some of these pitfalls?
For the buyer:
1. Ask questions, more questions, and even more questions. There is no law that says you must buy the horse recommended to you by a trainer, friend, relative, etc.
2. Remember that the horse is a living thing and therefore unpredictable.
3. Have your trainer ride the horse. If you do not have a trainer, hire one.
4. Get a vet check. Tell the vet clearly what the horse’s intended job is to be.
5. Have a back up plan if this horse does not work out.
6. If a trial is not possible at your barn, discuss the possibility of one at the owners barn.
7. Realize that once you have signed the contract, paid the money, and transported the horse home your options are limited. If you made a mistake, deal with it. Trashing the reputation of the other party only makes you look bad.
For the trainer/seller:
1. If you are the agent/trainer obtain in writing from the owner of the horse any issues that require disclosure. If a set of X-rays are present ask for them. If the owner of the horse seems reticent to provide information then perhaps they should find another agent.
2. If you are the owner, clearly state any pre-existing issues that the horse has in the beginning. Providing potential buyers with a statement might be an option. Seek legal counsel if in doubt.
3. Make sure the horse and rider are compatible. All too often I hear that a horse was purchased for a child and the child was over horsed. Either the parent or child exaggerated their riding abilities or in the heat of the sale the seller thought the partnership would work.
4. Encourage the buyer to obtain the advice of another qualified party.
5. Consider the use of an equine escrow service. All to often I have rushed to the bank to cash a check for a horse I have sold only to find the money is not in the account. I have also had buyers with a case of remorse take the horse home and immediately stop payment on the check without so much as a phone call. While this has not happened often, it has happened.
6. Have your attorney draft your sales contract.
7. If in doubt don’t sell. If the buyer has had questionable purchases in the past, there is no reason to believe your sale won’t head in the same direction.
There will always be questionable equine sales and purchases. There will always be a trainer/agent/seller who represents a horse inaccurately. There will always be a buyer who wants a Grand Prix horse for the price of a Training Level mount or exaggerates their ability. There will always be insurance scams and doping scandals. Despite all the negatives discussed in this article, I still enjoy the hunt for my next horse or the thrill of matching the right horse to rider. Buying and selling horses can be made less stressful provided care is taken. My parting advice is “Buyer and Seller Beware!”
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