Consumer purchase

Consumer purchase is a purchase agreement between a seller acting in a business capacity and a buyer acting in a non-business capacity. If the horse sold and delivered does not comply with the purchase agreement concluded between the seller and buyer, there may be “nonconformity.” Non-conformity means that an item does not have the properties that could be expected of the item under a purchase agreement. This may be because the horse is defective or does not meet expectations. “Defects” can include a veterinary problem, such as lameness or a stable defect. The vast majority of nonconformity cases are veterinary related. But also a show jumper bought under the condition that it can jump a 1.60m course, while after delivery it turns out that the horse cannot jump a 0.80m obstacle, can be non-conforming. This means that the answer to the question of whether the horse conforms to the agreement also depends on the nature of the statements the seller has made about the horse and that the properties the buyer could expect on the basis of the purchase agreement must be examined. Incidentally, the buyer does have a duty to investigate, but it is less far-reaching than is often thought.

Evidence assignment

The problem in consumer sales of horses is really always in the seller’s position of proof. If the nonconformity reveals itself within six months after delivery of the horse and a complaint has been made in a timely manner, under the law the nonconformity is presumed to have been present at the time of delivery of the horse. This means that the seller must prove that the horse fully complied with the purchase agreement at the time of delivery. This is often an impossible burden of proof. Thus, when it comes to a veterinary problem, it will have to be determined veterinarily when that problem arose.

In practice, the above means that at least within 12 months (that will presumably soon become 6 months again) after delivery of the horse, the seller is never sure whether an appeal will still be made, for example, to dissolve the purchase agreement on the grounds of non-conformity. If non-conformity is invoked and a timely complaint is made (within two months) and a proper notice of default is given, the seller will have to prove that the non-conformity was not present at the time of delivery.

Importance of comprehensive veterinary examination

It is customary that when horses are sold, the buyer has the horse veterinary inspected on his behalf. It is also customary for the buyer to determine the extent of that inspection. If non-conformity is found afterwards, it is up to the seller to prove that the horse was sound at the time of delivery and complied with the agreement. This means that the commercial seller has a much greater interest than the consumer-buyer in a preferably very extensive veterinary examination at the time of delivery of the horse. The more extensive that veterinary inspection is, the legally stronger the seller will be in a non-conformity claim. After all, if an equine veterinarian determines at the time of delivery during an inspection that the horse did not have any imperfections, the easier it will be to provide evidence to the contrary.

Horse Veterinarians

In my equine law practice, I often encounter veterinary examination reports following proven nonconformity that include legal qualifications, such as, for example, “the horse has been found to suffer from a destructive defect” or “the defect warrants cancellation of the purchase agreement.” Equine veterinarians would do better to refrain from such legal qualifications. Moreover, those qualifications are often legally incorrect. Reliance on non-conformity in consumer purchases can justify dissolution of the purchase agreement. Dissolution has no retroactive effect under Dutch law. Dissolution has the effect of creating mutual obligations to revive the old situation. Dissolution of a purchase agreement means that the horse must be returned to the seller and the seller must pay the purchase price received back to the buyer. There is then no question of annulment.

Annulment does come into play in the case of defects of will such as mistake or deceit. It is possible that a consumer-buyer could also (alternatively) invoke this. For example, the buyer could argue that he was mistaken about the qualities of the horse he bought and that this mistake was attributable to the seller. However, the burden of proof is then usually simply on the buyer and the buyer does not then enjoy the protection of the reversal of the burden of proof as with non-conformity in consumer purchases. However, an equine veterinarian cannot form an opinion about (legal) willful defects such as error and deceit on the part of the buyer at the time the purchase agreement was concluded and to whom these should be attributed. If it is established that there was indeed error, the purchase agreement can be annulled. Annulment does have retroactive effect. This means that after annulment, one must assume the situation as if the purchase agreement had never existed and the horse had never been delivered. Horse veterinarians had better not create legal expectations about this.

Advice

It would go too far to set out all the legal complications of non-conformity here. It is important to realize as a professional seller of horses that when selling to a consumer, the burden of proof in the event of non-conformity rests with the seller. The seller therefore has the greatest interest in a very extensive veterinary examination at the time of delivery of the horse, so that it can be proven afterwards that the horse complied with the purchase agreement at the time of delivery. Of course, 100% Certainty does not offer that either. The more extensive the examination, the more certainty, but also the more costly.

It is also important to put the purchase agreement on paper, so that it is clear in advance what the consumer-buyer’s expectations are and what qualities the horse has, or does not have. With a good written purchase agreement, the commercial seller is much stronger, even if the consumer-buyer appeals for error.