Legal issues around horse sales

[Freda]

An interesting situation has developed with acquaintances of mine around the sale and subsequent purchase of a horse from an online service.

Said horse was sold as 'sound with more wins....etc' , part payment was made and the horse put into work.

The purchaser noticed an area of concern and brought it to the attention of the vendor"s agent, who affirmed that the condition had been checked and all was well.

Subsequently the horse went amiss on that area.

Upon informing the vendor's agent of this development the purchasers were again assured that the horse had been passed OK.

The second- and final - part of the payment has not been made.

This is, I am sure, going to get messy.

What is the legal position on these situations?

Edited July 12, 2018 by Freda

[The Diceman's Been]

The company making the representations that the animal was "sound" will be needing to have a very detailed file of veterinary proof to get this over the line.

Any person making a statement that is relied on when making a purchase, and the purchaser has proof that the claims were made  (written or other that can be substantiated) is in a strong position to have the sale nullified.

[Freda]

Thanks,  T.D....I do realise there is always an element of 'caveat emptor' at auctions,  of course.

[The Diceman's Been]

Yes, it's always a cloudy area especially when you look at the T and C of individual auction sites.

For example clauses 8 and 9 of the link below, are quite specific that the risk is all the purchasers

http://www.allaboutauctions.co.nz/terms-and-conditions

But......you and I both know that a company like NZB, MM and Inglis have nullified sales because they have an excellent reputation of looking after both vendor and purchaser.

Edited July 12, 2018 by The Diceman's Been

[Freda]

update so far :

vendor is refusing to supply or allow viewing of the vet report,  and is demanding payment of second and final instalment.

[Huey]

Just out of interest I haven't seen part payment options available on any of the Auction sites I frequent, is that a private deal between Vendor and Buyer if you don't mind me being nosey.

[The Diceman's Been]

20 hours ago, Freda said:

update so far :

vendor is refusing to supply or allow viewing of the vet report,  and is demanding payment of second and final instalment.

I would be responding with an invitation to a civil court mediation settlement.

 

 

[Turny]

Cancel the purchase and sue for return of deposit - move to discovery and get the vet report under discovery process - Buyer has to initiate action IMHO

[Freda]

Thanks for the replies...interesting stuff.

[Freda]

19 hours ago, Huey said:

Just out of interest I haven't seen part payment options available on any of the Auction sites I frequent, is that a private deal between Vendor and Buyer if you don't mind me being nosey.

That is correct I believe.

Edited July 22, 2018 by Freda

[Freda]

Vendor  has had a change of heart and allowed viewing of the vet. report.......but  -  it transpires there isn't one.   The horse was never officially vetted as claimed.

[jess]

Vendor not sounding very forthright - or, frankly,  honest at this point.  Are you able to say Freda whether the sale is a one-off type situation from a small player or a vendor who more regularly trades? (rest assured - not trying to idenitfy anyone here - just wanting to know whether horses are the vendor's business or it's more a case of someone who is wet behind the ears /new to buying or selling horses....) 

J.

Edited July 29, 2018 by jess
correction

[Freda]

Definitely not 'wet behind the ears' ,   Jess.

[Gospel of Judas]

Sounds like good case for the  Consumer Guarantees Act.

[Short Stuff]

is it true that the horse broke down  3 months after the purchase

[jess]

This is really regrettable.  And I feel sorry for the purchasers - and despite caveat emptor prevailing to a certain extent - it appears on the face of it, the purchasers have been misled - firstly in the nature of the advertisement which it appears was for a sound horse with potential for more success.  And secondly since discussions about the issue have ensued - in regard to the inspection/(non-existent) veterinary report.

I am surprised at the vendor if s/he is not new to the game that s/he is not more invested in putting things right here - and ultimately maintaing their own good name.

I note the reference Freda makes to a "vendor's agent" - and I wonder if this is where the waters have been  muddied.  Who knew what?  Who was making the claims/wrote the ad/knew the horse?

Nevertheless - the vendor must surely take ultimate responsibility for the transaction and any representations made.  Their integrity is at stake.  

I wonder what the online service has to say in regard to the deal - they also have a reputation to protect and this will not be helpful in respect of purchasers having confidence in that outfit's vendors.  

I don't know if there is any online TB auction online other than Gavelhouse so while Freda hasn't named any names - I can't see an alternative unless the horse was purchased on Trademe or on the Aussie based Bloodstock one (plse feel free to correct me if I'm wrong) .

Which brings me to reputation.  Trademe has a system for feedback on buyers/vendors.  With this sort of nonsense - maybe these TB online auctions should too.

Freda if you are in touch with the purchasers plse encourage them to seek redress and have the matter sorted out.  Perhaps a meeting between the purchasers, vendor and agent is in order?  Nothing like a cup of tea and a korero - face to face.  Would be nice to sort it that way rather than Plan B - formal action, costs and exposure for dishonest conduct.  Perhaps as things are they have a window of opportunity to make good and save face by putting it down to a miscommunication ....

Freda - you have been very circumspect in what you have said on this thread but these things always get out in the end ....  

All the best. I hope you can keep us informed.

Best regards, Jess

[Freda]

Excellent post,  Jess,  and good advice.

A korero with a satisfactory result - for both parties - would be the best resolution for all.

[Arsenic]

I would have thought the buyer is at fault, why would you buy a horse without a vet giving it the once over.

Anyone with a semblance of intelligence would get a horse checked out before you buy ,  you don’t go and buy a house without looking and checking it  out or buying a car you take it for a drive and give it a going over buy the aa or a mechanic .

Pritty straight forward stuff.

[Arsenic]

Further to this issue, when did the purchaser notice there was an issue .

Like the next day coming off the float, a week, a month or 3 months.

And one would imagine the purchaser would have been working the horse , so how long has this horse been in work for the new trainer before there’s an issue.

[Freda]

In answer to Arsenic -  it seems you are not quite clear as to the matter causing the disagreement.

And,  although I have my own opinions,  I am not posting for that reason - rather to get a consensus from others of what,  if anything,  can be done to resolve matters without too much angst.

Horses become unfit for purpose all the time,  for many reasons,  no-one is disputing that fact.   The issue here,  I understand,  is one of misrepresentation - and good faith.

Upon arrival, the area of concern was brought to the attention of the vendor's agent who confirmed a vet check had been performed and the horse passed fit.

Why,  under those circumstances,  would the purchasers spend more money to repeat the process when they trusted the agent?

They took said agent's word as being in good faith and this is where the problem has arisen,  it seems.

On-line auctions are a cheap option to move horses on,  and the system can only work well if full disclosure is made when advertising.

Edited August 2, 2018 by Freda

[Kopia]

I realise this is a little bit off topic, however can anyone answer this?  If a horse-say-wins a trial or two impressively, and as the owner you haven't said to anyone that its for sale...lets say an agent approaches the trainer, says ' I've got a client who'd buy that horse'..

OK lets say you tell the trainer you'll sell for..$$$....and the deal is done...with the proviso that you as owner are not the agents 'client'..

1. Your'e up for 10% to the trainer ( and quite rightly so)

2. The agent will probably think your'e going to sling him 10%..

My point is-the agent is acting for his own client who will be paying him to source horse/s...so why would the owner of the horse entertain any claim from the agent? And there's every chance that the agent will flick it on to his 'client' anyway ( if there ever was one) and clip the ticket again..

3. My opinion is-and these deals seem pretty loose-I would tell the agent to get stuffed-your'e not acting for me, and you never were... there's a certain amount of 'pressure'....read 'blackmail' involved in some of these deals from what I hear..

Love to hear any opinions on this.

[Freda]

Point  3 for me.

There are some very reputable dealers/agents,  and of course their livelihood is dependant upon them getting paid a fee and/or a percentage.

But there are  cowboys who do a great deal of 'clipping'  I think...and I do know of situations where dealers - and trainers - can misrepresent the purchase price so that the only one that gets fleeced properly is the original owner.

There was a regular poster some years ago who was very vociferous about the need for a 'bloodstock code of conduct '  -  not sure if there is one now or not -  he got a lot of stick for his opinions but I thought he had a fair point.

 

[jess]

Always plenty of parasites about.

If I am the horse's owner - I have no issue with the 10% to the trainer.

As for the buyer's agent - I don't feel like I owe him a dime.

I knew a fella who sold a few he owned.  Each time he simply said to his trainer re prospective sales - I want $xxxx in my account or else we carry on as we are - I own it - and I pay you to train it - and it stays on the property (his or the trainer's).

He was always very happy with that arrangement and whatever was paid for the horse, or whatever the trainer clipped from the ticket - he didn't concern himself over.   

There was no angst, bargaining, complications or drama for him - the money landed in his bank account - or it didn't.  He was content either way.

 J.

Edited August 3, 2018 by jess
correction

[curious]

2 hours ago, Freda said:

There was a regular poster some years ago who was very vociferous about the need for a 'bloodstock code of conduct '  -  not sure if there is one now or not -  he got a lot of stick for his opinions but I thought he had a fair point.

http://www.bafnz.com/2015-Code-of-Ethics-for-BAFNZ.pdf

[curious]

8 hours ago, Freda said:

In answer to Arsenic -  it seems you are not quite clear as to the matter causing the disagreement.

And,  although I have my own opinions,  I am not posting for that reason - rather to get a consensus from others of what,  if anything,  can be done to resolve matters without too much angst.

Horses become unfit for purpose all the time,  for many reasons,  no-one is disputing that fact.   The issue here,  I understand,  is one of misrepresentation - and good faith.

Upon arrival, the area of concern was brought to the attention of the vendor's agent who confirmed a vet check had been performed and the horse passed fit.

Why,  under those circumstances,  would the purchasers spend more money to repeat the process when they trusted the agent?

They took said agent's word as being in good faith and this is where the problem has arisen,  it seems.

On-line auctions are a cheap option to move horses on,  and the system can only work well if full disclosure is made when advertising.

While I accept the above points Freda, I think the onus is usually on the buyer in these situations. It would obviously depend on the specific Ts&Cs of the vendor's agent under which the horse was purchased. The below is from the T&Cs of gavelhouse for example, which would leave the purchaser out in the cold I think in the situation that you  describe. Of course, as has been suggested, it may be that a korero can bring about a happier outcome, especially if the Vendor intentionally misrepresented the situation and if they and the agent are interested in acting in good faith and preserving goodwill and reputations.

7.9 Fitness for Purpose
You as a Buyer acknowledge, subject only to the limited warranties expressed in these Terms and Conditions:

(a) The purchase is made solely in reliance upon Your own:
(i) enquiries and inspection; and
(ii) skill and judgement.

(b) That no guarantee, representation or warranty of any kind is made or given as to the fitness for purpose, soundness, condition or other quality of any Lot sold, either by:
(i) the Seller or
(ii) by Us and,
(iii) all implied conditions, warranties, guarantees, rights or remedies statutory or otherwise, including, but not limited to, any warranties of merchantability and fitness for a particular purpose are hereby excluded to the maximun extent permitted by law.

(c) It is Your responsibility as a prospective Buyer to arrange for any veterinary inspection or inquiry that You may require and You assume all consequences and risk from failure to do so.

(d) You have not relied on any statement made by or on behalf of the Seller or by Us in relation to any Lot.