The new law of obligations has also affected old trading customs when purchasing horses. Prices for good sport horses have risen. When concluding a purchase contract, buyers and sellers both must ensure that the horse is suitable for the contractual use. There are a few pitfalls to consider.
With the reform of the law of obligations, the legislator deliberately dropped trade customs and in particular the old imperial cattle enactment. According to European sales law sellers are just like sellers of other consumer goods liable as far as a horse is sold by a professional rider and seller to a consumer, such as a hobby tournament rider.
Here, the horse is also subject to the regulations of the purchase right in accordance with § 434 BGB. Accordingly, the horse is free of material defects if it has the agreed condition upon delivery. If this condition has not been agreed at least conclusively, it depends on whether the horse is suitable for the use presupposed by the purchase contract.
When purchasing a horse, it is therefore particularly important whether the horse is suitable for the purpose for which it was purchased. For example, a horse bought by an experienced but hobby rider for L-level dressage must also be suitable for L level dressage, as required by the training scale and the lessons required there. It especially depends on whether the seller has advertised the horse in the sales negotiations and in an advertisement accordingly.
If the horse, although it is free of diseases and building deficiencies for the L-dressage (yet) is not suitable, it may still be deficient according to the conditions mentioned above. It therefore depends on what has been agreed. If the horse remains behind the agreements, it can be deficient.
Frequently, in matters of defectiveness or, agreed quality the question raises what the burden of proof of the agreement is for the condition and how the claiming defects must prove the defects to the buyer.
Imagine that the horse bought above, which was advertised as having been made ready for an L-level dressage, turns out to be unsuitable for the hobby-driven tourney buyer. First, the hope for tournament success will fail to appear and after a while, the buyer even has difficulties riding the usual lessons in a L-dressage with the horse.
Initially, within the first six months, there is the shift in the burden of proof. The seller must therefore prove that the horse had the contractually agreed quality at the time of delivery. In this case, a change in riding and keeping the horse as an athlete creates a significant deterioration of the rideability of the horse, even though it was not caused by the seller.
Therefore, it is useful to advertise the horse only for its basic characteristics, for example, for having good gaits or the horse's general ability to complete an appropriate L-dressage training. However, with this approach, the achieving selling price may become lower.
On one hand, it makes sense to comprehensively document the horse at the time of delivery. For instance, a current placement, a video of riding and on the purpose of the contract focused purchase investigation clarify the fact that the purchased item (horse) has the agreed nature at the time of delivery. On the other hand, this approach can significantly increase the sales value as well as the legal certainty.
The judicial opinion partly represents that the shift in the burden of proof for the first six months from the date of delivery is not applicable to horses in individual cases because it puts an unreasonable burden on the seller. The horse, as a living creature reacts strongly to its treatment and environment and finally changes its nature continuously. To burden the seller with the obligation to prove that the horse did not already show the alleged deficiencies at the time of delivery violates the principles of taking of evidence. In practice, this approach seems less significant. Finally, one should not rely on the fact that, in case of doubt, the General Court applies that legal concept to the specific case.
The first two points already show that, if the preparatory work is appropriate, the question of a disclaimer of warranty is irrelevant.
Still, the question regarding the meaning of warranty needs to be answered.
The warranty describes the situation where the seller guarantees that the purchased item, ie the horse, has the agreed quality at the time of delivery. If there is a defect after delivery, the first dispute is whether it already existed at the time of delivery.
In the first six months after delivery, the seller must prove that the defect that has now occurred has not already existed at the time of delivery.
The warranty must be differentiated from the so-called guarantee. A guarantee binds the seller to the agreed extent that the purchased item retains the agreed quality beyond the time of delivery. That should be less relevant for the horse purchase law.
If the horse has been thoroughly tested at the time of the sale and a veterinary purchase examination has been carried out with regard to the agreed suitability, then in all cases there is still need of clarification about minor deficiencies in the building or training of the horse Do not fear this procedure. The horse as an individual and as an athlete can never be completely free of defects. It is only important that the existing deficiencies, for example, an already healed injury, is documented and included in the purchase contract. A horse sold in this way has the agreed quality and, despite its defects, is free of defects in terms of purchase law.
The minor relevance of disclaimer of warranties results in addition from the fact that a "handwritten negotiated" disclaimer of warranties usually agreed with the purchaser in the same manner should still be treated as a formal warranty exclusion within the scope of control of general terms and conditions, which is generally ineffective.
However, if an effective exclusion of warranty had been individually agreed, the so-called "sale cases", then it must be questioned whether the apparent defects should not have been known to the seller. Thus, it must be figured out if the seller has fraudulently concealed the defects. Then even with an effective exclusion of warranty the contract could be rescinded.
Another important case in which a warranty exclusion is not likely to be relevant is when the seller behaves contradictory. If he assures a quality at least conclusively, namely that the horse is suitable as a riding horse, he cannot subsequently rely on a burden exclusion for defects that hinder the suitability of the horse as a riding horse. This affects, for example, serious diseases of the musculoskeletal system such as navicular inflammation, laminitis or spat. Also, the recently occurred problem called touching spinous processes Kissing Spines has already found its way into the jurisprudence. For instance, horses with this syndrome have already been recognized by the courts to be severely deficient without showing any deficiencies in rideability.
Basically, the facts mentioned above also apply here. The purchase right applies as well. The seller first has a right to rectify. In the individually agreed purchase, of course, a subsequent delivery of a comparable horse is out of the question. It can also be considered to treat the horse by a vet.
Rights to reduce the price refer to the purchase price. When calculating the appropriate reduction amount, one often cannot avoid having an expert who has to calculate the reduced value based on actual suitability.
In the case of significant defects and failed rectification, a withdrawal from the purchase contract can finally be made. In addition to the purchase price accessory claims must be considered, such as frustrated veterinary costs, feed costs, cost of the overpass. Costs for the adjustment of the saddle and also the legal fees for the enforcement of the withdrawal from the contract.
In conclusion, I would like to advise you to have the horse thoroughly documented and examined at the time of delivery. This approach is advisable for both sellers and buyers
I would like to support you in advance with the contract formation, whereby I can also consider international private law and tax law to accompany you to have a legally safe purchase of horses. The spectrum of my activity ranges from the inclusion of the advertising design in the purchase contract on the cooperation with the veterinarian in the purchase investigation to the representation in case of dispute.