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Q: In September 2008 I sold my colt. His passport was changed to the new owner, and an arrangement made that he would stay with me until gelded by my vet, for which I would bear the cost.

However, my vet discovered a sarcoid on his sheath, so the gelding did not proceed. The colt had no further treatment and now the purchaser is requesting the return of the purchase price. Where do I stand?
BA, Borders

It is not uncommon for both parties to agree that certain events will take place before physical possession of the horse is transferred.

“The question that arises, however, is whether the contract between the parties becomes conditional on those events actually taking place,” said Stuart Farr of Laytons Solicitors. “If they don’t take place, the whole contract could become void, or unenforceable.”

Richard Brooks of solicitors Withy King agrees.

“There is a contract here, albeit an oral, not a written one,” he said. “Much depends on whether the contract was concluded on the proviso that the colt was gelded. Did the seller say, in effect, ‘I will buy the colt as long as you geld it?’. If that is the case, the fact that it is not gelded means the seller is not able to satisfy their part of the bargain and cannot force the buyer to pay.

“In legal terms, the contract has been ‘frustrated’ by circumstances nobody anticipated, and both parties should be put back in the position they were in before the deal was done.

“On the other hand, if the gelding operation was discussed only after the purchase contract was concluded, then the question becomes whether the sarcoid is sufficiently serious to constitute a breach of contract,” said Richard.

“If the colt was ‘sold as seen’ then the buyer must buy. Not many sales actually fall into that category because it is only natural for parties to discuss the horse. This means the quality of the horse has to match the words used. A relatively minor sarcoid that affects neither health nor performance is unlikely to constitute a breach of contract.”

“The process of committing any sale agreement to writing is vital and can provide much needed certainty in less straightforward cases, for example, where several things need to be actioned before the horse is delivered to the purchaser,” added Stuart.

Information

Withy King, tel: 01672 514781 www.withyking.co.uk

This Q&A was first published in Horse & Hound (16 April, ’09)

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