Selling a horse? You need to read this first…

  • While some owners will keep their horses from purchase into old age, others enjoy the experience of buying a young or project horse with the intention of selling it on, ideally for a small profit, at a later date.

    Equally some individuals will offer to help out a friend with the process of selling a horse that either hasn’t worked out, or is no longer suitable for whatever reason, which they don’t have the time or knowledge to sell themselves.

    But before you go ahead and book your horse for sale advert, have you considered whether you are a private or business seller in the eyes of the law?

    “Of course I’m a private seller”, you might think. “After all, I’m no horse dealer…”

    While you might not be working as a dealer, you may be surprised when the law views a person to be a business seller. It’s very important to understand this because business sellers have to work within the restrictions of The Consumer Rights Act 2015, which has replaced the Sale of Goods Act 1979 for any sale taking place between a “trader” and a “consumer” since 30 September 2015.

    Who is a business seller?

    Most people think that if they do not class themselves as a horse dealer, then these legal obligations do not apply to them. This is not necessarily the case.

    There is no official legal definition of a horse dealer. What is important is whether you are “acting for purposes relating to your trade, business, craft or profession” – if so this makes you a “trader”. Who you are selling to is also important as The Consumer Rights Act 2015 applies whenever a “trader” is selling to a “consumer”. In this context a “consumer” is someone who is “acting for purposes that are wholly or mainly outside their trade, business, craft or profession”.

    Do not assume that if your profession is not primarily selling horses, then The Consumer Rights Act 2015 does not apply to you. Alison Goodwin, head of equine at Harrison Clark Rickerbys Solicitors, explains: “Factors that may be taken into consideration by the courts when determining whether someone was acting in the course of a business, or not, include how many horses the seller has sold in the past few years and how long they have owned the particular horse in question prior to the sale as well as whether the horse was sold for a profit, among other things. So if you sell horses regularly, or have only had the horse for a short period of time and are looking to make a profit from the sale, you may be considered a business seller.”

    If you’re unsure about your status as a seller, then it would be wise to seek legal advice prior to advertising any horse for sale.

    If you do fall under The Consumer Rights Act 2015 as a seller, the Act requires the horse must be of satisfactory quality, fit for purpose and sold as described at the point of sale and subsequent delivery. This is the case even if terms such as “sold as seen” are used in the contract or receipt.

    Solicitor Josh O’Neill of international law firm Trowers & Hamlins’ dedicated specialist equine team explains: “Breach of either satisfactory quality, fitness for purpose and sold as described entitles the buyer to a 30-day right to reject the horse and claim additional losses starting from receipt of the horse. If the horse is not rejected within 30 days, the Act says the seller must provide a right of repair or replacement at their own expense within a reasonable time.

    “If the repair or replacement is not effective or forthcoming within a reasonable time, the buyer can exercise a final right of rejection or price reduction. In the context of a horse, a repair or replacement is not possible meaning a rejection and refund will be the only appropriate remedy.”

    Legal obligations for anyone who is selling a horse

    • You must have the legal right to sell the horse or have the authority from the legal owner to sell the horse
    • Ensure that any description you give of the horse both in writing and verbally to any potential purchaser is accurate
    • Do not make any statements or give any representations about the horse which you know are untrue or you are unsure whether they are true
    • If the horse you are selling is not owned by you and you are selling the horse on behalf of the owner, then make this clear from the outset to any potential buyers

    Extra legal obligations for business sellers

    These are additional obligations for business sellers, which apply to a sale by virtue of The Consumer Rights Act 2015.

    • The horse must be fit for the purpose for which it was sold
    • The horse must be of a satisfactory quality taking into account the description, price and other important factors

    How to protect yourself as a seller

    Whether you are a private or business seller, who is selling a horse on your own behalf or for someone else, you need to bear the following in mind to ensure that you are protected if things go wrong:

    • Ensure you know who the legal owner of any horse is and that they have the right to sell it
    • Ensure the horse’s passport is up to date and accurate
    • If you are selling for someone else, put down in writing the agreed terms of the sale including any commission payable on sale, livery/training costs until a sale is achieved, who pays for advertisements and where they should be placed etc. These terms can be incorporated into a specific sales livery agreement or recorded in a separate agreement
    • If you are selling on behalf of someone else and you draft the advertisement, get the owner to approve it before it is published.
    • If you take a deposit from a potential purchaser, agree exactly what the terms are for repayment and/or retention of the deposit and make a note of them on a receipt for the deposit or in a sale agreement
    • Continue the horse’s insurance until it has been delivered to/collected by the new owner
    • If there is any delay between vetting and collection/delivery of the horse, take a full set of photographs of the horse before it leaves your yard. (This is especially important if a transport company collects the horse on behalf of the purchaser)
    • Make sure payment has cleared into your account before the horse leaves your yard

    Other important considerations

    Under The Consumer Rights Act 2015, if you have sold a horse and the buyer comes back to you with a complaint, the onus is on the buyer to show that the horse was either not of satisfactory quality, not fit for purpose and not as described at the point at which the horse was delivered. However the time period under which this action can take place is up to six months after purchase, warns Josh O’Neill of Trowers & Hamlins.

    “The Act creates a presumption that any issue identified within six months of delivery making the horse not of satisfactory quality was also present at delivery,” Josh explains. “In practice, this puts the burden on the seller to show that the issue was not present when the horse was sold, which can be very difficult to prove. The best form of evidence is often a report from a veterinary specialist or behavioural expert. Sellers should keep records of all correspondence with buyers after purchase indicating a satisfaction with the horse. Social media posts by the purchaser can also be useful in this regard.”

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