The uncertainty of breeding can lead to disappointment, and, inevitably, disputes. The exciting prospect of welcoming a foal often leads breeders to overlook important issues that should be considered before reaching an agreement for stud services.
Owners of stallions or mares can protect themselves by entering into a breeding contract (which should spell out, in detail, what is expected from both parties). If there is no contract in place, the law offers limited protection.
If the owner of the stallion is breeding in the course of a business, and the mare owner is not, the latter may rely on the provisions of the Consumer Rights Act 2015. The Act provides the mare’s owner with the right to expect that goods or services provided are of satisfactory quality, as described, provided with reasonable care and skill, performed in line with information provided about the service and if no time for performance has been agreed, that the service is provided within a reasonable time of making the contract.
While these rights do serve to assist the parties to a certain extent in the event of a dispute, they are very broad and were clearly not prepared with the breeding of horses in mind. The aggrieved party will need to argue that the terms of the Act apply to the scenario in question. It will be very difficult, for example, for the owner of a mare to prove that the lack of foal was due to the quality or otherwise of the service provided by the stallion.
What is a ‘living foal’?
Many studs advertise a “no foal free return” policy. However, the vagueness of these words often causes confusion. For example, what would happen if the mare foals and the foal dies within the first few hours or days? If the mare doesn’t hold in the second year of covering should it be entitled to return for a third year?
The circumstances in which the mare is entitled to return for re-covering must be agreed. A well-drafted breeding contract will define what constitutes a living foal. A veterinary certificate should be required to confirm that the mare has been scanned as not in-foal, or has otherwise failed to produce a living foal (a living foal normally being defined as either a foal that stands and feeds, or lives for a defined number of hours after being born).
Other issues which should be agreed include: certification that the horses are free of contagious or hereditary diseases; the right (or requirement) to transfer the covering on a sale of the mare or stallion (or death of the mare or stallion); the months of the year when the stallion may be unavailable to cover, damage caused by the mare to the stallion (or individuals and property) and vice versa; other illness or injury suffered by the mare while at the stud and the agreed cost of keeping the mare.
The Animals Act 1971 provides that if a horse causes damage to people or property, in certain circumstances, the owner of that horse will be held responsible. If you wish either to limit or exclude liability for any damage (you can’t exclude liability for personal injury caused by the horse), or ensure that the owner of the other horse will be held responsible for any or all damage, this will need to be incorporated into the breeding contract.
Mare owners should notify their insurers of their intention to breed from the mare (particularly if the mare is being sent away to the stallion) to ensure that the policy remains in force.
When semen is being purchased from overseas (or sold overseas) it is vital that the breeding contract records that any dispute will be resolved in the Courts of England and Wales to avoid the requirement to navigate a foreign legal system in the event of a dispute.
The protection that you will require from a breeding contract will depend upon whether you own the stallion or the mare. Owners of breeding horses can save themselves significant time, money and uncertainty by ensuring that their rights are clearly defined.
• Hannah Bradley is a solicitor specialising in equine and bloodstock disputes
Ref: Horse & Hound; 10 March 2016