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The Seller’s Contract Includes an “As Is” Disclaimer – Now What?

"As Is" Blocks with GavelBefore a horse sale concludes, the seller asks the buyer to sign a written sale contract that includes an “as is” disclaimer. Should the buyer sign the contract? And if the seller refuses to negotiate a removal of that disclaimer, should the buyer walk away from the transaction? Not necessarily.

The “As Is" Disclaimer

“As is” disclaimers can be found within a wide variety of sale contracts, and equine contracts are no exception. Many sellers (several of our clients included) routinely insist on them for all transactions. State law sometimes dictates other state-specific language that a contract should include to legally disclaim warranties. These types of clauses, assuming that they are legally valid in the jurisdiction, place buyers on notice that they are about to engage in a “buyer beware" arrangement.

Options for Responding to these Disclaimers

When a seller presents an equine sale contract with an “as is” disclaimer, the buyer need not back out of the transaction as long as he or she is willing to examine the horse carefully, ask the right questions, and sometimes seek out opinions of experts such as veterinarians and equine industry professionals. For example:

  • Investigate. The buyer can conduct a careful, thorough pre-purchase investigation of the horse. Assuming that the contract allows the buyer a period of time to investigate, the buyer can hire an independent veterinarian (who does not work with the seller and has not worked with the horse) to conduct a pre-purchase examination and a drug screen. If the buyer cannot attend the examination in person, he or she can consider arranging to have the exam videotaped. Also, if the examination is being performed a considerable distance from the buyer, the buyer can ask the veterinarian performing the examination to send the x-ray films to his or her local veterinarian for a second opinion before making the purchase.
  • Seek disclosures. The buyer can ask the seller to include in the contract certain disclosures about the horse’s history and condition such as the horse’s health, vices, and training. Even if the seller has made these disclosures verbally, the buyer can insist that they be included in writing within the contract. The buyer can also demand assurances in writing that the horse has transferable registration papers.
  • Demand a warranty of title from the seller. Although state law might allow the sales contract to disclaim certain warranties (such as a warranty of merchantability or fitness for a particular purpose), the buyer certainly can insist on a warranty that the seller owns the horse and can sell it to the buyer free and clear of liens and encumbrances. 
  • Hire an equine industry professional. The buyer can see the horse in person or hire an equine industry professional to do this. Also, if the buyer has a use for the horse in mind, such as showing in certain disciplines, it might make sense to hire a reputable equine industry professional for an opinion as to the horse’s suitability.
  • Seek legal counsel. Before the transaction concludes, the buyer can hire a lawyer to draft or review the sale contract and advise whether its provisions, such as the “as-is” disclaimer, comply with the applicable state’s law. A lawyer can explain risks and offer suggestions for negotiating the contract’s terms. As a lawyer can explain, under the law of several states, “as-is” clauses cannot prevent the buyer’s claims of sales fraud.
  • Before the sale concludes, the buyer (or the buyer’s lawyer) can always try to negotiate the contract’s terms.

Sales contracts are important documents. Buyers and sellers should hire their own knowledgeable lawyer to assist with contracts and transactions. The cost to prevent a lawsuit is usually a small fraction of the cost to resolve one. If you have further questions about this article or other concerns about equine sale contracts, contact Julie Fershtman at 248.785.4731 or at jfershtman@fosterswift.com.

Categories: Compliance, Contracts, Sales/Disputes

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is considered to be one of the nation's leading attorneys in the field of equine law. She has successfully tried equine cases before juries in four states. A frequent author and speaker on legal issues, she has written over 400 published articles, four 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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Fershtman’s Book Wins National Award

Julie Fershtman’s latest book, Equine Law and Horse Sense, won its fourth national award on May 31, 2021. It was selected to receive a "Finalist" Medal in the 2021 Next Generation Indie Book Awards. 

The 2021 Next Generation Indie Book Awards are presented by Independent Book Publishing Professionals Group (www.IBPPG.com), which is the largest International awards program for indie authors and independent publishers. Here’s a link for the complete list of winners and finalists: https://indiebookawards.com/winners/list

Fershtman’s Book Receives Award

Julie Fershtman’s book, Equine Law & Horse Sense, published by the American Bar Association, has been selected to receive a 2020 NYC Big Book Award in the category of “Reference” books.

The NYC Big Book Awards draws nominations world-wide. This is the third award for Fershtman’s book since its publication last year. Here is a link for more information, and to see the list of winners: https://www.nycbigbookaward.com/2020winners

Information on the book: https://www.amazon.com/gp/product/164105493X/ref=dbs_a_def_rwt_hsch_vapi_taft_p1_i0

Fershtman’s Book Receives Award

Julie Fershtman’s book, Equine La & Horse Sense, published by the American Bar Association, has been selected to receive a 2020 NYC Big Book Award in the category of “Reference” books.

The NYC Big Book Awards draws nominations world-wide. This is the third award for Fershtman’s book since its publication last year. Here is a link for more information, and to see the list of winners: https://www.nycbigbookaward.com/2020winners

Information on the book: https://www.amazon.com/gp/product/164105493X/ref=dbs_a_def_rwt_hsch_vapi_taft_p1_i0

Our Equine law blog (and its author) in the news!

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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