Needing information on contracts.

July 24, 2008 4:47 AM

I need help with the details of writing a purchase agreement for a horse.

I'm helping a friend write out a contract for a horse she's purchasing. I want to make sure the seller discloses any known medical or personality flaws of the animal and am adding a full disclosure clause to the contract. Should I also be adding a paragraph for the seller regarding warranties? i.e. Merchantability or Fitness for a Particular purpose? I know seller's contracts usually disclaim express and implied warranties, but if I add the full disclosure portion should I even bother putting it in?

I just don't want this to be so one-sided that the seller refuses to sign. Any ideas on this would be appreciated.


*Also, I know you're either not an attorney or not my attorney.

posted by Breo to Law & Government (10 answers total)

I'll never understand why people in the process of buying something worth thousands of dollars have such an aversion to spending a few hundred to protect their investment.

IANAL, but... in my opinion, ignoring the fact that this is the type of thing you should be consulting an attorney for, you're going about it the wrong way.

One sure way to put the seller on the defensive is to blind-side them with something on the sales contract. By and large, the contract shouldn't be a whole bunch of new terms and conditions but, rather, the written documentation of negotiation that's already taken place. (There are exceptions, especially for industry standards/boilerplate, etc)

Have you asked the seller if the horse has any medical or personality flaws? If so, have you asked the seller if they're willing to put their assertion that there aren't in writing? What about the warranty? These aren't things you add to the contract and then hope the seller signs it -- they're things you've presumably already talked about.

That way, when the seller refuses to guarantee that the horse is fit for showing, you can have a discussion about it instead of it being a confrontation that could poison the whole deal.

One other thing to keep in mind: if there is any ambiguity in the contract, it will be decided in favor of the party that didn't draw up the contract. By you/your friend doing the drafting, you're putting yourself in a situation in which one slip-up or careless word could negate the protection provided by the contract. Are you well-versed enough in contract law to be sure that your contract won't end up screwing your friend down the line?

Do your friend a favor and tell them that they'd be better off consulting with a real attorney.
posted by toomuchpete at 5:55 AM on July 24, 2008

There are lawyers that specialize in equine law. Call one if you are that worried. However, generally speaking, no seller is going to warranty the horse for one second after you tow it off their property. The horse could be perfectly healthy when you buy it and hurt it's leg the firsts night at the new home. It happens. The best thing for your friend to do (if they are not horse savvy) is have someone who is give them an opinion on the horse's conformation relative to whatever they are planning to do with the horse. If the conformation is good and temperament is good, then have a pre-purchase exam done by an equine vet. It'll cost a couple of hundred bucks, more if you do blood work. It will uncover any hidden lameness issues. If you are spending big bucks on a performance horse I'd get the full blood profile done too. I've known people that drugged their horses to hide both physical and behavioral issues when buyers were examining them. BTW, bring your own vet, don't use the buyers Vet for the pre-purchase. You want a vet that has never seen the horse before so the opinion is completely objective.

Although honestly, I don't think the lawyer is necessary unless this is a seriously expensive horse. Horse sales are generally as-is. Ask the right questions and get a Vet's opinion. You are buying a live animal, and one that tends to be temperamental. There are no guarantees. The buyer probably has a generic bill of sale that says you are buying the horse for x dollars, and no warranty is implied, blah blah blah. If I were selling there is no way I'd sign a contract presented by the buyer.
posted by COD at 6:12 AM on July 24, 2008

The seller is going to want to make an as-is sale but probably encourage a pre-sale veterinarian examination. Then you get the horse examined or you sign that you declined to have the horse examined. Get the examination.

You also tell the seller and state in the contract (and tell the examining vet before the examination) why you are buying the horse: state exactly what you intend to do with the horse -- what kind of activities, what frequency, how many years, what sort of rider, etc. Then the seller is obligated to inform you if the seller has reason to believe that the horse is unsuitable for such purposes. There are a million little reasons why a horse may be no damned good for jumping, for example, and you might not be able to think of all the questions that would cover them, but if you make it clear that you intend the horse to be a jumper in regular competitions, the onus is now on the seller to speak up if there's a reason why the horse can't be expected to do such things.

Check all that with a lawyer, of course, of course, because nothing is true in law unless lawyers say so and judges agree. It's a little game they play.
posted by pracowity at 6:14 AM on July 24, 2008

IANAL. You can write all you want into a contract, but do not spend more than a few hundred dollars (i.e. less than the cost of a vet check) on a horse without a thorough vet check including x-rays. I would also get a good farrier out to watch the horse move and look at the feet. A seller can easily say that they didn't know about the budding laminitis, since the horse was asymptomatic, but a vet check will show it, to give one example. Also, be sure that your friend AND at least one other knowledgeable other horse person have tested this horse, if it's meant to be a jumper, they should have jumped it under a variety of conditions (at least indoors and outdoors). Trailer it around the block, etc. There is very little a contract can protect against that you cannot sort out ahead of time in the real world yourself, most of the time the paperwork involved in buying a horse amounts to little more than a bill of sale and the signing over of whatever registration documents there may be, no seller in their right mind is going to disclose every little thing, for fear that you will turn around and sue them later, and horses being what they are, there are all kinds of things which can change and the seller can just as easily say that whatever goes wrong is your fault. Due diligence is your job, it cannot be circumvented with a contract. If you must have an actual contract in which you insist that the seller disclose things, get a lawyer experienced in the horse world to look it over, and advise you as to its actual real-world viability.
posted by biscotti at 6:41 AM on July 24, 2008

Response by poster: Maybe I should have prefaced this with "I don't need advice about buying a horse." I know a good deal about horses/purchasing horses and a bit about equine law. A professor of mine(who specializes in equine law) is planning to look over the contract before I'm finished with it to make sure it's solid. I just wanted advice on wording before hand, as he's doing this as a favor to me and I'd like him to have to change as little as possible.

The seller (who is a grand-prix dressage instructor) is willing to sign a full disclosure contract and has already assured us the horse has no known faults or medical issues (and yes, obviously a vet will be doing a pre-purchase exam). I want to get this in writing in the strange, one-off chance case litigation would ensue.

Many thoroughbred contracts and horse auction purchase agreements are "AS-IS", but in the sport-horse industry many contracts are full disclosure, not just a spit-and-a-handshake kind of deal.
posted by Breo at 10:00 AM on July 24, 2008

Response by poster: Thanks for the answers so far by the way. I appreciate the warnings, it's just not what I'm looking for.
posted by Breo at 10:02 AM on July 24, 2008

"I appreciate the warnings, it's just not what I'm looking for."

What you appear to be looking for is legal advice related to contract drafting. If you're that concerned, call a lawyer. If your professor (hopefully a law professor) is going to be looking over the contract, the odds that you'll give him something he's happy with are pretty slim. No matter how much advice you get, he'll likely change it to suit his tastes and opinions anyway.
posted by toomuchpete at 11:19 AM on July 24, 2008

Response by poster: It's not a problem if no one here knows/wants to share the answer to what I'm asking about. Since metafilter has been such a wealth of information before, I figured I would ask.

I'm also not asking about whether or not I should be writing this contract.

If anyone does have an idea and cares to share some information, thanks!
posted by Breo at 12:07 PM on July 24, 2008

Best answer: IAALBNYLNAPOELAPNQIYJSTFDNCLA* but I have a couple of observations.

First, and on a practical, tactical tip, in my experience (non US based), Americans love a warranty claim. Be careful if you are introducing a warranty provision as this may make the seller jittery or otherwise unreceptive to you.

Second, the diligence/warranty/disclosure process is a fairly well worn path for solicitors (attorneys) and is slightly Ouroborossian area, with diligence begetting warranties begetting disclosure begetting amended warranties begerring more disclosure begetting alarming last-minute renegotiation of terms/price begetting reviews of diligence and so on. Going into this process half-cocked could be more dangerous than not going into it at all (though this will depend on the common law protections in your jurisdiction): if you approach the seller and say "are facts x, y and z true?", are told that they are and conclude the contract on that basis only to find out that a devastating FACT Q about the horse (horse polio, wooden leg, fear of jodhpurs, whatever) you'll have a harder time getting your money back - particularly if the seller has done his/her legal homework on their side of the disclosure/warranties etc.

Third, while your professor contact may be extremely well versed on the technicalities of contracts for sale and purchase of hosses, I would still counsel in favour of actually speaking to a lawyer - there is a world of difference between the academic and the commercial practice of law and your primary concern should be getting the practical commercial reality down, not the technical niceties (though they are, as the name implies, nice, too). I really would urge you to take specialist commercial legal advice now or sooner, particularly as any lawyer you do hire will probably cost more if he or she is using your drafting as a starting point, rather than a style of their own devising.

Of course, much of the foregoing is not appropriate if the horse is being purchased for scrap and the sums involved are small. And so I repeat the mantra of the commercial solicitor and the key question for you to ask of yourself: how much is it worth to you?

* I am a lawyer, but not your lawyer, nor a practitioner of equine law and probably not qualified in your jurisdiction so the following does not constitute legal advice
posted by my face your at 9:12 AM on July 25, 2008

Response by poster: Thanks, my face. The professor I'm speaking with is a lawyer, specializing in equine law so I should be good to go there.

The seller said he would warranty whatever she wanted. I just didn't know how to type that up since I am used to using AS-IS contracts.

Thanks for the info!
posted by Breo at 6:34 AM on July 30, 2008