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Can You Buy and Sell an Unborn Foal?

A mare is in foal, and the mare/prospective foal owner sells the foal months before the foal is born.  These arrangements occur with some frequency in the equine industry. In these unique arrangements, a carefully worded contract is important for a few reasons:

First, because of the many foreseeable expenses in the months before, during, and after the time the foal is born, the contract can plan for them.  The contract can also spell out who is responsible for payment if problems should occur.  For example, if the foal needs special veterinary care, such as surgery, who will pay the veterinary fees?  Who decides when to contact the veterinarian?

Second, the applicable state law might demand that the arrangement be in writing, especially if the transaction is meant to last for an extended period of time.  An example of these laws is the “Statute of Frauds.”  Most states have a Statute of Frauds on the books, which requires that if it will take more than a year between the time when the contract is made and when it is performed, the contract needs to be in writing before it can legally be enforced.

New York’s statute of frauds, for example, generally requires a written agreement if the agreement, by its terms, “is not to be performed within one year from the making thereof.”  This law was, in fact, at issue in a dispute between parties to an unwritten contract to board and breed mares and foals.  When the parties took the matter to court, a judge ruled that the statute of frauds prevented the unwritten contract from its obligations, including horse breeding, were meant to be spread out longer than one year.

Contracts can include several elements in these unique sale arrangements. For example:

  • acknowledgment of the sale of the unborn foal
  • when the seller can take possession of the foal
  • details regarding costs associated with the mare and the foal and who will pay for them, such as veterinary fees, vaccinations, pre-natal care, post-natal care, extra boarding or keeping costs until the seller takes possession
  • any requirements for the care of the mare and/or foal, such as special feed and/or feed supplements that must be provided and who will pay for them
  • the standard of care that the buyer (mare owner) must adhere to before, during, and after the time the foal is born and while the foal is in the mare owner’s care, custody, and control
  • if the foal is to be registered, agreements for the seller to cooperate in breed registry documentation that will reflect the buyer as the foal’s owner of record, and who will pay the registration fees
  • if the mare encounters serious problems in the pregnancy or delivery of the foal, who (if anyone) will pay special veterinary costs
  • if the mare loses the foal or fails to generate a healthy live foal, whether the buyer is entitled to a refund or whether the contract will extend another season so that the mare can be re-bred, and who (if anyone) will pay the stud fee or associated fees to re-breed the mare
  • who must transport the foal after it is weaned and who pays shipping costs
  • liability release (where allowed by law)

These are just some of the many elements for a contract.  For the best protection, a knowledgeable lawyer should be consulted.  If you have any questions, please let me know.

Categories: Sales/Disputes

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is considered to be one of the nation's leading attorneys in the field of equine law. A frequent author and speaker on legal issues, she has written over 400 published articles, three books, and has lectured at seminars, conventions, and conferences in 29 states on issues involving law, liability, risk management, and insurance. For more information, please also visit www.fershtmanlaw.com and www.equinelaw.net, and www.equinelaw.info.

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Julie Fershtman, author of our popular and prolific Equine Law Blog, was interviewed by the State Bar of Michigan. The interview, which called Fershtman "Lawyer-Blogger," discussed our Equine Law Blog. We truly believe that this blog is the nation's most active blog serving the equine industry on equine law topics, and we thank you for visiting it. Read more here.

Julie Fershtman’s Recent and Upcoming Equine Law Speaking Engagements Include:

National Conference on Equine Law in Louisville, Kentucky on April 29, 2020. Topic will be on Waivers/Releases of Liability Involving Minor Participants. 

U.S. Hunter Jumper Association (USHJA) Annual Convention in Denver, Colorado on December 10, 2019. Topic will be on Equine Liability. 

IRMI Emmett J. Vaughan Agribusiness Conference (“AgriCon”) in Sacramento, CA (April 2019), and Richmond, VA (June 2019) and in Des Moines, IA (September 2019), on topics of “Equine Activity Liability Acts” and “Equine Mortality Insurance Disputes.”

National Conference on Equine Law in May 2019 in Lexington, KY, on the topic of “Equine Activity Liability Act Updates” and liabilities involving hosting of equine clinics. 

Agricultural Claims Conference in Kansas City, MO, in March 2019 on topics of “Loose Livestock Liabilities.”

2018 American Bar Association Annual Meeting in Chicago, IL, on “Equine Mortality Coverage and Disputes.”

November 2018, American Horse Council webinar on “Equine Liability.”

Honors & Recognitions

Equine lawyer, Julie Fershtman, has received these prestigious equine industry awards from respected equine organizations:

"Excellence in the Advancement of Animal Law Award" - American Bar Association Tort Trial & Insurance Law Section Animal Law Committee

"Distinguished Service Award" - American Youth Horse Council

"Industry Service Award" - Michigan Equine Partnership

"Catalyst Award"- Michigan Horse Council

"Outstanding Achievement Award" - American Riding Instructors Association 

"Partner in Safety Award" - American Riding Instructors Association 

"Associate Service Award" - United Professional Horseman's Association

"National Partnership in Safety" Award" - Certified Horsemanship Association 

What our Equine Law Services can Provide

Handling breach of contract, fraud/ misrepresentation, commercial code, and other claims involving equine-related transactions including purchases/sales, leases, mare leases/foal transfers, and partnerships.

Litigating disputes in court or through alternative dispute resolution (arbitration, mediation, facilitation).

Defending equine/farm/equestrian industry professionals,  businesses, and associations in personal injury claims and lawsuits.

Drafting and negotiating contracts for boarding, training, sales, waivers/releases, leases, and numerous other equine-related transactions.

Representing and advising insurers on  coverage and policy language as well as litigation;

Advising equine industry clubs and associations regarding management, rules, bylaws, disputes, and regulations.

Representing some of the equine industry's top trainers, competitors, stables, and associations.

Counseling industry professionals, stable managers, and individual horse owners. 

THE NATION'S MOST SOUGHT-AFTER EQUINE LAW SPEAKER

Did you know Julie Fershtman has spoken at the American Horse Council Annual Meeting, Equine Affaire, Midwest Horse Fair, Equitana USA, US Dressage Federation Annual Meeting, North American Riding for the Handicapped (now PATH International) Annual Meeting, American Morgan Horse Association Annual Meeting, American Paint Horse Association Annual Meeting, US Pony Clubs, Inc.'s Annual Meeting, All-American Quarter Horse Congress, American Youth Horse Council Annual Meeting, American Riding Instructors Association Annual Meeting, CHA Annual Meeting, and numerous others? Consider signing her up for your convention. Contact Julie.

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