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10 Aug 2021 Buying or selling a (sport) horse: hidden defects, what about them?

It is the nightmare of every buyer and seller of (sport) horses. An expensive horse is bought or sold, but the horse becomes lame, sick or does not meet the expectations of the buyer. What to do now?

Of course you should immediately call a horse doctor. If the horse indeed turns out to have a defect, the following situations are roughly the order of the day:

Rights and obligations of the buyer

Article 7:17 of the Civil Code states the following:
"An item (the horse) does not comply with the agreement if, partly in view of the nature of the item and the information provided by the seller about it, it does not have the characteristics which the buyer might expect on the basis of the agreement. The buyer may expect the item to possess the characteristics required for normal use, the presence of which he had no reason to doubt, as well as the characteristics required for a special use (outdoor riding, endurance, dressage, etc.) that was provided for in the contract. The purchaser may not rely on the fact that the goods do not satisfy the contract if, at the time the contract was concluded, he was aware or could reasonably have been aware of this.

In short, this means that the horse must meet the purchaser's expectations, but the purchaser must have made these clearly known to the seller and the purchaser also has a duty to investigate whether the horse actually meets his or her expectations (duty of investigation).

Consumer purchase or private sale

A consumer purchase means that the buyer, the consumer, has bought the horse from a company, a commercial stable or riding school. With a consumer purchase, the consumer is protected by consumer purchase law. For example, Article 7:18 paragraph 2 of the Civil Code stipulates that if in a consumer purchase it is suspected that the item - the horse - has not fulfilled the agreement upon delivery, the item - the horse - must be taken back by the seller.

The opposite of a consumer purchase is the private sale. In this case the buyer bought the horse from a private individual. In the case of an agreement between two private individuals there is no consumer purchase law.

Dissolving the purchase

There are three situations in which the sale can be dissolved

1. Hidden defect
The buyer discovers within 6 months after the purchase that the horse has a defect, which logically was also present before the purchase. However, this must be demonstrated (antedated) by an authorised veterinarian. Do not wait, have the horse examined as soon as possible and inform the seller of the situation. In the case of a consumer purchase, the burden of proof lies with the vendor: the vendor must prove that the injury was not present at the time of the sale.

If the purchaser bought the horse from a private individual, then the burden of proof lies with the purchaser: the purchaser must provide evidence that the defect was already present before the sale. The purchaser can only do this if he has evidence from an expert. This expert, preferably a specialised veterinarian, must establish that the injury was indeed present before the time of purchase. However, the purchase can only be annulled if the horse has a condition of a permanent nature that makes it unsuitable for the purpose for which it was purchased (e.g. sport).

2. Non-conformity
Or 'breach of contract'. A breach of contract occurs when one of the two parties is culpably in breach of its obligation to fulfil an engagement or (sales) agreement. In other words, the buyer did not receive what he or she had agreed with the seller.

3. Misrepresentation
The seller has led the buyer into believing that the goods are not correct. The purchaser must make clear to the seller what he or she expects from the horse; the seller then has the duty to tell whether the horse meets this requirement or not. The seller may not conceal a lack of characteristics or qualities which he could know are essential to the buyer.

Summary

It is important for both the buyer and the seller, when buying or selling a (sport) horse, to discuss at length what the seller knows about the horse (duty of disclosure) and what is important about the horse for the buyer (duty to investigate). Ask specifically about any previous lameness, tendon injuries, competition history, etc. If the horse is bought, lay down the agreements and mutual expectations in a written purchase agreement. The buyer is advised to always have a purchase examination carried out by a specialised veterinarian, even if the seller already offers an examination report and/or X-rays. Need help or advice? Do you have any questions on this subject? Please contact SPEE lawyers & mediation.

SPEE advocaten & mediation Maastricht

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