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Horse Purchase Disputes – The Consumer Rights Act 2015
How does the introduction of the Consumer Rights Act 2015 impact the issue of buying a horse or pony and then finding out there is an issue?
We hope that by providing a little more information on this subject it will help to highlight what the Act covers.
As horse purchase disputes are by far the most common form of equine legal problems requiring specialist services.
Such disputes fall into two distinct categories; commercial and private sales.
A. Commercial Sales
On 1 October 2015 the Consumer Rights Act 2015 came into force.
It reintroduced many of the rights previously available under the old Sale of Goods legislation.
The Act also provided more extensive rights to a “consumer”,
“an individual acting for purposes that are wholly or mainly outside their trade, business, craft or profession”.
When purchasing from a “trader”,
“a person acting for purposes relating to their trade, business, craft or profession”.
“Goods” which include horses must be:
of “satisfactory quality”,
“fit for their particular purpose” and
“comply with their description” and
a Consumer Contract “is to be treated” as including such terms.
Satisfactory Quality
The quality of goods is deemed satisfactory, if they meet the standard that a reasonable person would consider satisfactory.
This needs to take account of any description of the goods, the price, and all other relevant circumstances.
The quality includes the state and condition of the goods and where appropriate:
their fitness for the purpose for which goods of that kind are usually supplied,
their appearance, finish, freedom from minor defects, safety and durability are all material aspects.
The protection of “satisfactory quality” does not cover anything which is specifically drawn to the consumer’s attention before the contract is made, or where the consumer examines the goods before the contract is made, or something which that examination ought to reveal.
Fitness for Purpose
If before the consumer agrees to buy the goods he/she makes known to the trader any particular purpose for which the consumer is purchasing the goods, the contract is treated as including a term that the goods are reasonably fit for that purpose, whether or not that is a purpose for which goods of that kind are usually supplied unless the consumer did not rely, or it was unreasonable for the consumer to rely, upon the skill or judgement of the trader.
Description
The goods must also correspond to any pre-contract information about the main characteristics of the goods which the trader provides to the consumer.
Consumer’s Rights
Where the goods “do not conform to contract” because of breach of the terms as to quality, fitness for purpose or description the consumer has the following rights:
a right to reject the goods within 30 days,
a right to have the goods replaced,
a right to a price reduction or a final right to reject.
If the goods do not conform to contract at any time within 6 months from the date of delivery they are taken not to have conformed on the date of delivery unless the trader establishes otherwise.
B. Private Sales
In the absence of any express agreement reached between the parties it is for the purchaser to satisfy himself/herself that the goods are in order and hence of satisfactory quality, fit for their intended purpose and meet their description.
The seller has no such obligations. This is the longstanding legal principle of “caveat emptor” or “buyer beware”.
In those circumstances a private sale purchaser’s entitlement to bring a claim is often limited to rights available under the law of misrepresentation.
The law of misrepresentation
The law of misrepresentation is separate and distinct from that relating to the law of contract. In consequence claims can be brought for both breach of contract and misrepresentation at one and the same time as well as separately. For a misrepresentation claim there are five essential ingredients;
the seller (or his agent) must make a representation of fact about the goods,
the purchaser must rely upon the representation of fact,
the representation must induce the purchaser to enter into the agreement to purchase the goods,
the representation must be false, and
loss must have arisen as a result.
Misrepresentations can fall into three categories; innocent, negligent and fraudulent.
The extent of the rights available is dependent upon the nature of the misrepresentation. Generally however a purchaser is entitled to recover compensation for the misrepresentation and in more serious cases to rescind the agreement and recover the purchase price and claim a refund for expenses incurred.
C. Defects with Horses
For a successful claim generally there will need to be a defect with the horse. Defects typically fall into types; clinical and behavioural.
Clinical
Clinical defects again fall into two categories; latent and patent. Patent defects are those which can be discovered by reasonable inspection. Latent defects are those which cannot be discovered by reasonable inspection. For example:
A horse that trots up lame displays a patent defect.
A horse with OCD (osteochondritis dissecans) may not display any physical symptoms at the time of purchase but through activity may soon become lame. Such a defect is latent until it becomes patent.
The five stage pre-purchase veterinary examination is designed to address clinical defects (and to a lesser extent behavioural ones). It is important to recognise that generally only patent defects will be capable of being identified through the examination process.
Only with x-ray photographs or adoption of similar procedures will latent defects be revealed. Latent defects may still render the horse to be not of satisfactory quality and/or unfit for its intended purpose.
Satisfactory proof of clinical defects will normally require veterinary evidence. In the first instance a report/letter from a treating veterinary surgeon may be sufficient to establish the nature, if not origin, of the defect. What is equally important however is the need to establish whether the defect was in existence at the time of sale.
Increasingly veterinary surgeons specialise in specific areas of veterinary medicine and there are many very capable and experienced “equine” vets. Such a veterinary surgeon should be consulted promptly when a clinical defect is suspected. The veterinary surgeon’s input and particularly any letter/initial report provided may be sufficient to resolve any dispute with the vendor. However, not every good horse vet is necessarily a good “expert” witness if the dispute should escalate to the point of litigation. In that event, careful consideration should be given to the appointment of an appropriate expert for evidential purposes.
Behavioural
Behavioural problems can have many origins including a manifestation of a clinical defect. Such problems may not necessarily constitute a “defect” for claim purposes.
Horses are simply animals and a change of environment, feed regime and different relationship with the rider/owner can all greatly influence the horse’s behaviour particularly in the period immediately following purchase.
It follows that careful consideration should be given to possible origins for any marked change in behaviour including enquiries made of the vendor and potentially veterinary examination. Where possible, enquiries should be made with the previous owners of the horse, and/or others who may be familiar with it, to establish whether the animal has previously displayed similar behavioural traits.
Where the behaviour is extreme but not of a clinical origin it may not necessarily require “expert” evidence. Video evidence for instance may be sufficient. In other cases evidence from a capable and experienced horse person, particularly one who is familiar with and understands the purchaser’s need and limitations may prove important.
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