For most horse enthusiasts, buying a new horse is a fun and exciting opportunity. However for some, what starts as a pleasant experience can quickly turn into a disaster. The old adage “caveat emptor” or “buyer beware” applies to horse sales perhaps more than any other.
To protect themselves, buyers need to exercise due diligence and have a carefully written equine purchase agreement. Of all the most common mistakes made by buyers, perhaps the biggest mistake of all, is not having a written purchase agreement. Regardless of the purchase price, the person you bought the horse from, whatever the reason, GET IT IN WRITING!
Written contracts, I believe, are important in these arrangements for two key reasons.
First, the parties in equine-related transactions always benefit when a written contract fairly, accurately, and thoroughly sets forth their arrangement. Purchase agreements are no exception. Second, whether you know it or not, the applicable state law probably requires a written contract. For example, most states have a “statute of frauds” on the books. These laws generally require that certain types of contracts must be in writing before they can be enforced. One type of contract governed by the statute of frauds is a contract for the sale of goods with a purchase price of $500 or more.
All purchase agreements should require certain express warranties. The agreement should state the registered name, age, sex and sale price of the horse being purchased. The agreement should require the seller to disclose any material health or soundness issues, past or present. The seller should also warrant that the horse has no dangerous or bad habits (such as biting, kicking, rearing, bucking, cribbing, weaving, etc.) or alternatively disclose such habits to the buyer. Some warranties are implied unless otherwise disclaimed, for example, that the horse is fit for a particular purpose. However it is still a good idea to have the seller warrant that the horse is fit for the particular purpose as advertised. This means that if the seller is advertising the horse as a finished and experienced youth show horse, that the horse actually has the training and characteristics of a finished show horse and is not green-broke with no show experience. The same applies if the horse is being sold as breeding stock. Beware of any “AS IS” language in the agreement if you don’t have any express warranties mentioned above.
If you are taking the horse on a trial period or making payments, there are additional terms you should cover in the written agreement. For a trial period, make sure the agreement covers the terms of the sale, including under what circumstances you can return the horse to the seller and what restrictions are in place during the trial period. Otherwise, you may find yourself in a situation where you don’t want the horse and the seller won’t take him back. If you are going to make payments, make sure you understand how and when the payments are to be made, and what recourse the seller has for taking the horse back if you miss or make a late payment.
A good purchase agreement should also state when the transfer of ownership and possession will occur, and who will bear the risk of loss. For buyers that are conducting business across state lines, it is important to have the agreement explain which state’s laws will apply if there is a dispute, and where the lawsuit (or arbitration) will be handled. Without this clause, a buyer from New York might be forced to go to court in the seller’s home state of California, making the buyer less likely to pursue a claim. Additionally, a good agreement will state who is responsible for attorneys’ fees if a dispute arises.