8 Suggestions for Avoiding Equine Sale Disputes
A few years ago I represented buyers of a horse who were victims of sales fraud. We took the case to trial, and we won. The judge even ordered the sellers to pay 100% of my clients’ legal fees.
The facts of the case were not complex. My clients bought a show horse for their daughter, a novice rider. In sales literature, the sellers represented this horse, a gelding, as “sound” with “no bad habits” and “ready to show.” My clients brought their daughter before the sale to test ride the horse, and he behaved beautifully in a chaotic environment with many distractions. Two days after the purchase, however, the horse showed drastic behavioral changes. He was unruly and dangerous. The sellers refused to reverse the sale. Left with a dangerous, unsound, and unsuitable horse, my clients had no choice but to hire me to help.
The fact is, many sales disputes can be avoided. Here are eight suggestions for what sellers should not do when selling a horse:
- Do not publish statements in advertisements without making at least a reasonable effort to check them for accuracy. In the suit I tried, the horse was advertised as “sound,” with “no bad habits” and “ready to show.” Make sure you can confidently stand by the statements in your ads. At trial, I proved these statements false and raised serious questions about whether the sellers recklessly put them in the ad.
- Do not assume that the wording of your sales ads carries no legal weight. It absolutely can. Under the law of several states, advertisements could qualify as warranties for which sellers can be held legally accountable if the horse fails to measure up to them.
- Do not assume that as-is” language in a sales contract prevents all lawsuits. Although “as-is” language can protect sellers, courts in several states have ruled that these clauses may not stop certain claims of sales fraud against the seller.
- Do not assume that the law is “buyer beware” and horse buyers have no rights. Buyers have rights and, in an appropriate case, have recourse against sellers. Depending on the facts and applicable law, some cases fail and some succeed.
- Do not assume that if a seller loses a sales case, the most he or she stands to pay is a refund of the buyer’s purchase price. Laws in many states could find a court ordering sellers to reimburse the buyer’s attorney fees and costs. Also, some states have consumer protection/deceptive trade practice laws that, if applicable, might obligate a losing seller to pay the winning buyer “treble damages” where the buyer’s losses are tripled.
Regardless of whether the seller wins or loses, the seller will almost definitely be required to pay his or her own legal defense costs. Even a winning defense can be very costly.
- Do not assume that the seller’s liability insurer will handle a sales lawsuit against and pay the seller’s legal defense fees. Standard homeowner’s insurance policies and commercial liability policies are not designed to respond to claims involving contract and sale disputes where the buyer seeks money and rescission. (Be sure to read your policy carefully and discuss your coverage questions with your insurance agent and/or your lawyer.)
- Do not assume that silence, in response to the buyer’s questions, will shield a seller from liability. For example, if a horse has a well-known tendency to kick out forcefully at the stall walls, your concealment of this information from a would-be buyer who specifically asks about the horse’s stall manners could set you up for liability for fraudulent concealment.
- Do not assume that horse buyers never sue. Buyers can and sometimes they do. And as the trial I won indicates, horse buyers sometimes win their cases.
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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