Can a high-priced dressage horse be returned due to radiographic findings?

BGH, judgment of 18.10.2017 - VIII ZR 32/16 on the return of a "high-priced dressage horse" due to an x-ray finding.

 

The Federal Court had to assess whether a horse can be returned on the basis of an X-ray finding. With regard to the underlying facts, the horse had remained without defects in the purchase investigation. The dressage horse, which was bought for a purchase price of € 500,000.00, had already developed rideability problems shortly after the purchase. A subsequent veterinary examination revealed an X-ray on the facet joint between the fourth and fifth cervical vertebrae (C4 / C5).

 

Return of the horse solely due to X-ray findings?

 

The question of law that had to be decided referred to whether a horse could be returned solely on the basis of an X-ray. The Court’s expert ascertained that due to the degree of the wear noted with the X-ray most likely the horse had it already at the time of delivery.

Thus, the horse was already burdened with the wear in the cervical area at the time of delivery to the buyer.

 

Suitability if the horse as normally agreed quality

 

However, the Federal Court has stated in its judgment that the causality of the radiographic findings must always be proven in regard to the riding defects. On the other hand, the expert determined that, in all probability, the lack of rideability was not confirmed by the radiographic findings. Thus, the Federal Court has established, in accordance with its consistent case-law, that the horse is still suitable for ordinary use and that consequently, there is no defect.

 

Physiological ideal norm not usual quality of a horse

 

The Federal Court also ruled that the suitability of a clinically inconspicuous horse for contractually required use as a riding horse would not be adversely affected by the fact that, due to deviations from the physiological norm, there would be little likelihood that the animal would develop clinical symptoms in the future. which stand in the way of his use as a riding horse. It is just as unlike the usual nature of an animal that it corresponds in every respect to a biological or physiologically ideal norm. This assessment takes account of the fact that animals are living creatures that are subject to constant development and that are endowed with individual plants and, accordingly, are subject to the resulting different risks. Finally, it depends on whether, on the basis of the X-ray findings, there is already the certainty or high probability that the animal will soon become ill and, for this reason or for other reasons, will no longer be usable for the contractually presupposed use.

 

Quality agreement as a condition for the return of the horse solely due to an X-ray finding

 

However, the Federal Court did not deprive the buyer from any and all rights. He pointed out that the absence of X-ray findings and their assurance can be regarded as a quality agreement. Interestingly, he did not refer to the purchase investigation and its inclusion in the contract. However, it is advisable in practice to document the result of a purchase investigation and the examinations carried out in the purchase contract and limit the liability only to the examinations that were carried out.

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