Ask H&H: embryo foals and surrogate mares

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Q: We sold a home-bred filly a few years ago. We agreed with the purchaser in writing that when the mare was “put in foal” we would buy the first filly foal for an agreed price.

The present owner told us last year that she would be transferring an embryo from the mare in question into a surrogate mare and we agreed not to claim the resulting foal.

The owner did, in fact, transfer two embryos and now has a colt and a filly. Are we right to pursue a claim for the filly foal? Are embryo foals classified as being out of the mare when the mare doesn’t actually give birth?
TS, Lancashire

It depends on how your agreement with the new owner was worded, said Stuart Farr, equine lawyer at Laytons solicitors.

While it is sensible to commit the terms of your agreement to writing, it is just as important to ensure there are no ambiguities or future problems stored up in what the parties sign.

“The key issue here isn’t so much how embryos are classified but the status and enforceability of the original agreement itself,” explained Stuart.

The agreement suggests that the first filly foal would be purchased “at an agreed price”.

“While this was no doubt intended to keep both parties’ options open for the future, it actually reduces the arrangement to little more than an ‘agreement to agree’,” said Stuart.

“It is not a contract in the true sense because the payment obligation is contingent. It is not apparent the transfer of embryos was even contemplated when the original agreement was signed and this may affect your rights of recovery.”

Elizabeth Simpson from law firm Andrew Jackson added: “The seller agreed not to claim the embryo foal, irrespective of its sex but on the understanding that there would only be one.

“Therefore, if the colt was born first then I consider a court likely to find that the seller has a claim to the filly foal as being the first “out of” the mare. If the filly was born first then I think a court would find the agreement not to claim “the resulting foal” would refer to her – subject to that agreement being found to be binding.

“If the owner is prepared to put the mare in foal again – naturally or to a surrogate — you may take the view that the second filly along would do just as well.”

Information

Laytons solicitors, tel: 0161 834 2100 www.laytons.com

Andrew Jackson, tel: 01482 325242 www.andrewjackson.co.uk

This Q&A was first published in Horse & Hound (27 November, ’08)

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