Selling a Horse on Installment Payments: Part III – Avoiding Common Disputes
Over the years, horse sellers have entered another’s property, such as a private barn or pasture, in an attempt to repossess a horse, only to face costly legal battles and sometimes even criminal charges of trespass and theft, as a result.
Here are suggestions for avoiding equine installment sales disputes.
1) The Buyer Stops Making Payment
When the buyer stops making payments, the seller’s options include:
- Hold the Registration Papers until the Final Payment Clears the Bank
Especially if the horse’s value for racing, showing, or breeding purposes depends on its registration papers, sellers would be wise to retain the papers in their own name and to hold them until the buyer’s final payment has cleared the bank. This alone is strong motivation for some buyers to pay on time, and sometimes to even make early payments.
- Properly Document the Seller’s Right to Repossess
A carefully written installment sales contract can give sellers a security interest in the horse. Consider a legally proper UCC (Uniform Commercial Code) financing statement in a form required under the applicable state’s law, and specify from the beginning how and when you may repossess the horse. Without proper documentation, repossession is not easy.
2) The Horse Becomes Injured, Ill, or Dies Before the Buyer Makes the Final Payment
Of the many ways to avoid this problem, here are two:
- Address "Risk of Loss" in the Sales Contract
For the seller’s protection, an installment sale contract can specify that the buyer exclusively bears all risk of the horse’s loss after the horse has been delivered to the buyer or after the buyer has signed the contract. This means that the buyer will accept the risk of injury to or loss of the horse, and that the buyer is still responsible for paying the full sale price, as agreed.
- Insure the Horse
Insurance cannot prevent a horse’s illness or death, but it can protect both parties if something should happen to the horse before it is fully paid for. The sales contract can require the buyer to purchase a policy of full mortality insurance on the horse, which designates the seller to receive certain proceeds in the event that a claim is made (this is often called naming you the seller as a “loss payee” on the insurance policy). Remember that the buyer and the seller cannot insure the horse at the same time. For the buyer’s protection, and to prevent the seller from reaping a windfall from collecting installments and also an insurance payout, the contract can specify that the seller, if mortality insurance proceeds are paid out, can only accept insurance proceeds equal to the amount of the remaining installments, and the rest will go to the buyer.
3) The Seller is Either Paid in Full or Has Repossessed the Horse – But It Took a Fortune in Legal Fees To Get This Result
Installment sales arrangements can generate costly legal battles. Here are two options for addressing the problem:
- Address attorney’s fees in the sales contract
An equine sales contract can protect the seller by specifying that the buyer agrees to pay the seller’s legal fees if a legal dispute arises involving the contract. Or, the contract can state that the losing party must pay the winning party’s legal fees. Unfortunately, there is never a guarantee that a court will enforce an attorney fee clause; without them, however, the seller has very little chance of recouping the cost of legal bills.
- Include an interest rate clause in the contract
Banks and credit card companies charge interest on unpaid balances through carefully written contracts that specify the rate of interest. Maximum interest rates vary by state law. Financial institutions and credit card companies are usually legally permitted to charge higher rates of interest, mainly because of the heavy degree of regulation these institutions receive from the government.
By proceeding cautiously before entering into an installment sale, you can avoid legal disputes altogether or narrow them considerably. Legal advice is strongly recommended.
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 ›
Our Equine law blog (and its author) in the news!
Julie Fershtman, author of our popular and prolific Equine Law Blog, was interviewed this week 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.
Honors & Recognitions
Congratulations, Julie! We're proud to share that Julie Fershtman has received two prestigious awards.
On April 13, 2013, she received the American Youth Horse Council's 2013 "Distinguished Service" Award. As the award itself states, she received it "[i]n recognition of years of dedicated service to the American Youth Horse Council and tireless efforts to touch the lives of youth involved with horses." For more information about the American Youth Horse Council, please visit www.ayhc.com/.
On May 7, 2013, Julie received the 2013 "Industry Award" from the Michigan Equine Partnership for her work over the years supporting legislation to promote and protect the Michigan equine industry. For more information about the Michigan Equine Partnership, please visit www.miequine.com/.
RECENT EQUINE LAW COURTROOM VICTORY
We're pleased to share that Julie just won a case in Michigan where she defended a boarding and training stable that was sued by a visitor who was injured in the barn aisle. Julie cautions that this case might have been avoided altogether if the stable required every visitor to sign its waiver/release of liability. (Julie, interestingly, drafted that stable's release document years ago but the stable only presented it to customers.) Make sure that your release is well-worded and complies with the laws of your state.
"The Seller's Contract Includes an "As Is" Disclaimer – Now What?" - Desert Mirage Magazine, August 2013
Win Equine law Books!
We're always on the lookout for good article and update ideas for the Equine Law Blog. Please share yours! We'll give the sender of best tip of the month a free copy of Julie Fershtman's books, EQUINE LAW & HORSE SENSE and MORE EQUINE LAW & HORSE SENSE. Click here to send your ideas. [For more info on these and other publications written by Julie Fershtman, please visit www.equinelaw.net and www.equinelaw.info or call her directly at (248) 785-4731.]
Large Step Forward for the Horse Industry
We applaud the American Horse Council (www.horsecouncil.org) for its national marketing initiative for the horse industry. The AHC joined together ten national associations and large corporate industry stakeholders to make this happen. We await its marketing plan, which will propose ways to help people become more interested in horses and equine activities, either as participants or spectators.
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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