Legal Aspects of the Trial Period: Three Foreseeable Problems and Ways to Avoid Them
"Try out my horse for few weeks. See if you get along with him."
These were the words of a sincere, well-intentioned seller who only wanted a satisfied buyer. Could anything possibly go wrong with this trial period arrangement? Let’s explore three possible problems and ways to avoid them.
Problem One: The "Buyer" Steals the Horse, Without Payment
This situation is rare but preventable. The seller can:
- Require Full Payment Up Front. As an alternative to the trial period, the parties can finish the sale now, giving the buyer the option of returning the horse for a refund if the horse comes back within a certain number of days in good condition.
- Retain the Registration Papers Until The Last Payment Clears. If the "buyer" wants to steal the horse, papers may be meaningless. But a buyer who needs the papers for breeding, racing, or showing purposes will more likely come through if the seller holds papers during the trail period and provides them after the buyer makes full payment.
Problem Two: Your Horse Injures the "Buyer" During the Trial Period
Liability during the trial period is a major concern. After all, the seller retains ownership of the horse, but there is no telling what the buyer will do to “test out” the horse. Some ideas for addressing the matter are:
- Release of Liability (Where Allowed By Law). The seller would be wise to require the buyer to sign, in addition to the trial period contract, a well-written release of liability. Where allowed by law, a release of liability is a powerful protection for the seller. A release (sometimes called a "waiver") is someone's agreement to sign away what would otherwise be a legal right sue for a variety of claims (state law determines what, if any, claims can be released away). Sellers seeking the best protection should consider consulting with an attorney.
- Insurance. Although courts in most states have enforced properly worded and presented liability releases, having a release does not eliminate the need for good insurance. A cautious seller can make sure that his or her insurance is up to date as to types and amounts of coverage and that the insurance will cover injuries that may occur during the trial period.
- Make the Transaction a Sale. The seller can request that the parties complete a sale of the horse, with the buyer entitled to a refund under certain conditions.
Problem Three: Your Horse Injures Someone Else During the Trial Period
The seller, simply because he or she owns the horse, is at risk of being named a party in a liability lawsuit if the horse kicks, bites, throws, or injures someone else during the trial period. Certainly, many of the same suggestions found in problem two, above, can apply. In addition:
- Indemnification. In its most basic sense, indemnification is an arrangement in which someone agrees to compensate another for an anticipated loss or liability. As an example, an indemnification provision between the seller and buyer can provide: if a loss or liability is asserted against the seller, then the buyer will pay the seller’s legal fees any liabilities or judgments asserted against the seller. Indemnification agreements can be complicated, and laws vary.
Trial periods and arrangements involving them can be complex and risky. Direct your questions to a knowledgeable attorney.
Julie Fershtman 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.View All Posts by Author ›
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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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