The days of handshake deals have PASSED. Please, if you take nothing else from this column, never ever Ever EVER buy a horse on a handshake deal. The world has become litigious (sue-happy) and not putting things in writing is asking for trouble; specifically, a lack of contract will severely limit the legal methods you as the Buyer or the Seller can employ to protect yourself in the event of a lawsuit from a sale gone sour. Draft and sign a Bill of Sale!
A Bill of Sale is a contract between the seller of a horse and the buyer of that horse for the purchase of said-horse. As such, it is a contract, and its contents can mean the difference between getting the horse of your dreams or being saddled with a “lemon” who I’m sure is quite loveable, but probably not what you bargained for (literally). Now the keyword here, ironically, is “saddled” because nothing can completely protect you from potentially buying a “lemon” horse, but a properly drafted Bill of Sale can determine whether you’re stuck with it.
Never ever Ever EVER buy a horse on a handshake deal.
Three areas of the law govern how a horse sale conflict may be resolved. (1) Tort law governs civil suits like fraud and negligence. (2) The Uniform Commercial Code (UCC) governs all merchants of goods, therefore commercial horse sales fall under this area of the law. (3) Your state Consumer Protection Act (CPA) protects Buyers from deceptive and unfair practices by Sellers, whether commercial or not.
Some legal points:
- Under tort law, misrepresentation of a sale horse can cause a claim for fraud and possibly negligence if someone is injured or killed because of that misrepresentation (or omission).
- The UCC generally requires a contract for the commercial sale of goods costing more than $500. Under this law, horses are “goods” and therefore qualify as needing a contract for sale.
- There must be a contract to employ the UCC in a lawsuit because any claim or defense would focus on what is or isn’t in that contract.
- Under the UCC, lawsuits over horse sales are usually based on one or two of the Bill of Sale’s implied warranties: Warranty of Merchantability and Warranty of Fitness for a Particular Purpose (more on that in a minute).
- CPAs are employable without a contract because they focus on the fairness and transparency of the entire transaction rather than the contents of the contract.
- Under CPAs, courts look at whether the Seller’s sales activity (including marketing) or representations (verbal and written) could mislead a Buyer.
- In some states, fraud, negligence, and breach of warranty automatically violate CPAs, which opens the Seller up to paying substantial money damages.
- Not having a contract may violate “The Statute of Frauds” (which is beyond the scope of this article) and could void the entire agreement if made on a handshake.
To avoid trouble under any of these areas of the law, here are some recommendations for what your Bill of Sale should say:
Things for both the Seller and the Buyer to consider:
The state where you buy or sell your horse might dictate a specific requirement for a Bill of Sale and its contents (particularly in Florida, Kentucky, and California). For example, Florida law dictates that there must be a Bill of Sale and it must contain at least these eight pieces of information:
- The name, address, and signature of the Purchaser, the Owner, or their duly authorized agents. In a transaction solely relating to a stallion season, breeding right, or fractional interest in a horse, the syndicate manager or horse manager may serve as an acceptable agent in response to this requirement.
- The name of the horse, and its sire and dam if known.
- The breed and registry status of the horse, if applicable and if known.
- The age of the horse, if known.
- The date of the sale.
- The purchase price of the horse.
- The following statement: “As the person signing below on behalf of the Owner, I hereby confirm that I am the lawful Owner of this horse or the Owner’s duly authorized agent, and I am authorized to convey legal title to the horse pursuant to this bill of sale.”
- The following statement: “As the person signing below on behalf of the Purchaser, I understand that any warranties or representations from the Owner or the Owner’s agent that I am relying upon in acquiring this horse, including warranties or representations with respect to the horse’s age, medical condition, prior medical treatments, and the existence of any liens or encumbrances, should be stated in writing as part of this bill of sale.”
These eight pieces of information are designed to protect the Buyer and the Seller from each other. Clauses one through six are self-explanatory. Clause 7 exists to ensure the Seller is in fact the rightful owner (or a lawful agent of the rightful owner) of the horse you are buying; it attests that they have the right to sell the horse to you free of any other interest, title, or claim. Clause 8, on the other hand, exists to protect the Seller from having the Buyer return next week saying their new horse is not the 5* show jumper the Seller said he is. Unlike in other states, nothing verbally said about the horse’s condition or ability (etc.) carries any weight in Florida (more on verbal warranties in a minute). All warranties (e.g. the horse is fully sound, fertile, or can jump 3’ 6” with scope for more) must be written into the Bill of Sale for the Buyer to make a case for recission (undoing) of the sale if the horse fails to meet those expectations.
Florida’s Bill of Sale rules are the strictest in the country, but their content requirements are a good minimum for any Bill of Sale, regardless of where the transaction occurs. Read on for more considerations.
- If a horse fails to meet the Buyer’s expectations, the Buyer may want to return it. Courts vary on how long a period is “reasonable” for a Buyer to have a case for returning a horse. If the horse becomes lame a week after purchase (and not caused by a new injury), is that reasonably close to the date of purchase to be within the speculative “window” for return? To avoid an expensive guessing game, I recommend you put a return window into the Bill of Sale. That window could be 0 minutes, 24 hours, or 30 days or more―it’s up to you and the Buyer to agree―but I would put it in writing to avoid a costly lawsuit over the issue.
- Include the horse’s microchip number to make identification indisputable.
- Determine if the price includes sales tax, which is charged in some states, and include that fact and the amount in the Bill of Sale for tax filing purposes.
- Buyer and Seller should establish in writing exactly when ownership changes hands―by event, not necessarily date/time―to determine who owns the horse during transport. For example: Buyer takes ownership of said horse upon departure from Seller’s farm, or upon arrival to United States, or upon arrival at Buyer’s barn.
- Be sure to include a clause that states which state’s laws govern the transaction (where the Seller is located or where the Buyer is located or where the horse is located). As noted above, different states have different laws.
Things to consider if you’re the seller:
- Disclose all relevant facts about the horse, e.g. health history, soundness, training, and temperament. Failing to disclose material information about the horse may violate your state’s CPA. Courts often find failure to disclose just as deceptive as actual fraudulent misrepresentation. Omissions that cause injury or death may make you liable for fraud and/or negligence.
- An “As Is” clause alone does not prevent implied warranties from attaching to the horse’s sale. You as the Seller can still be liable for the Implied Warranties of Merchantability and Fitness for a Particular Purpose under the UCC. The only way to prevent such warranties from attaching is to expressly and specifically disclaim them in the Bill of Sale; simply adding “without warranties” and/or “without representations” may not be specific enough in some courts. An example of an express and specific disclaimer of Warranty of Fitness for a Particular Purpose would be: “Unless otherwise expressly stated in this Bill of Sale, Seller makes no guarantee―verbal, written, express, or implied―as to the soundness, condition, conformation, and/or performance of said horse for any particular purpose.”
- Warranty of Merchantability is an implied warranty that promises the horse sold is “merchantable” (marketable) and reasonably conforms to the Buyer’s expectations (they’re getting what they’re paying for). If a horse becomes lame shortly after being purchased (and not caused by a new injury) and then cannot be sold to a third party (becomes unmarketable), the Implied Warranty of Merchantability may allow the Buyer to rescind (undo) the sale, even if the lameness issue was unknown to the Seller at the time (in some cases). Alternatively, if the horse fails to live up to the Buyer’s reasonable expectations, the Implied Warranty of Merchantability may allow the Buyer to sue for the difference between what was paid for the horse and what the horse is actually worth.
- Under the UCC, any affirmation of fact or promise made by the Seller to the Buyer relating to the horse being sold becomes a part of the basis of the bargain and creates an express warranty that the horse shall conform to the affirmation or promise made. Put simply, this means that words you say can become integrated into the bargain and act as a promise that the horse sold will conform to the statements you made, even if not put in writing (except in Florida). This can get Sellers into hot water under the UCC’s Warranty of Fitness for a Particular Purpose. And, if the Buyer relied on what you said as part of their reasoning for purchase, and what you said turned out to be false, you may also be liable for fraud.
- For example, if you say, “This horse is bombproof” (which I highly recommend you never say), that statement becomes a promise you’ve made to the Buyer. If the purchased horse is in fact known to rear at its own shadow, the Buyer likely has grounds to sue the Seller for fraudulent misrepresentation. If, prior to purchase, the Buyer explained to the Seller that the “bombproof” horse was intended for his 7-year-old daughter, the Buyer may also have grounds to sue under the UCC’s Warranty of Fitness for a Particular Purpose because a horse prone to rearing is obviously unsuitable for a 7-year-old child. And, if that 7-year-old child was hurt or killed by said rearing horse, the Buyer may have a case for negligence.
- The contract should state whether the Buyer purchased the horse with the guidance of a trainer or broker to show that you as the Seller were not the only voice relied upon.
- The contract should state that the Buyer had the opportunity to have an independent veterinarian perform a pre-purchase exam of the horse, and that if they did not exercise that right, they waived it.
- If you agree to maintain ownership of the horse until its arrival at the Buyer’s barn, the horse will be your loss if something terrible happens enroute. Make sure to maintain the horse’s existing insurance or insure it prior to transport.
Things to consider if you’re the buyer:
- Assume NOTHING.
- If you are buying a horse for a particular purpose (e.g. a broodmare), ensure that purpose and the fact that the horse is fit for that particular purpose is written as an express warranty in the Bill of Sale. For example: “Said horse is known to be fertile and is fit for the purpose of breeding.”
- If a trainer or broker helped you find the horse, find out if they are also representing the Seller. If so, this is called “dual agency” and requires your written consent in some states. Decide if you are comfortable with the dual agency and put it in writing along with how fees and commissions, if any, will work from both sides of the bargain.
- Have an independent vet who is unfamiliar with the horse and unconnected with the Seller to perform a pre-purchase exam. Some courts have stated that this exam is customary practice in the equine industry; not performing a prepurchase exam may be interpreted as waiving your right to sue for any physical/medical issues later discovered.
- Request that the Bill of Sale attest the horse has not been administered any medication or treated by any veterinarian within the last 7 days. Alternatively, if the Buyer accepts that the horse has been medicated or treated in the last 7 days, that information should be disclosed in the Bill of Sale.
- If you agree to take ownership of the horse prior to its arrival at your barn, the horse will be your loss if something terrible happens enroute. Make sure to insure the horse prior to transport.
- When considering which state’s laws should govern the transaction (where the Seller is located or where the Buyer is located or where the horse is located), look up each state’s CPAs to determine which are the most Buyer friendly and lobby the Seller for that state to govern the transaction.
Nothing can completely protect you from potentially buying a “lemon” horse, but a properly drafted Bill of Sale can determine whether you’re stuck with it.
Obviously, for my clients, a Bill of Sale is mandatory, but I was recently asked if it’s better to have a detailed Bill of Sale or one that is more generic that you can probably just download online? Which one has more loopholes? First, even a generic Bill of Sale you find Googling is better than no Bill of Sale at all (unless you’re in Florida where a generic Bill of Sale may not meet the legal requirements). But second, it’s probably clear by now that I prefer a detailed Bill of Sale. I believe that it’s best to try to prepare for every eventuality that might arise in and around a horse sale and contract for how it will be handled. That way, both sides of the transaction know exactly what to expect from each other if the worst-case scenario becomes a reality.
In terms of loopholes, a generic Bill of Sale may fail to expressly and specifically disclaim implied warranties; it may fail to state who owns the horse during transport or whether a pre-purchase exam is waived if not performed, etc. In my opinion, a generic Bill of Sale may leave gaping holes for a legal action where the law greatly favors the Buyer. Seller’s can better protect and prepare themselves by contracting away potential problems rather than leaving out details for a court to fill in as they see fit and Buyers can rest easier knowing they are entering into a transparent transaction.
Conflicts over horse sales are unfortunately common. The industry has a long history of fraud and deceit―it’s where the derogatory term “horse trader” came from―but even reputable Sellers can have problematic sales because horses are an inherently risky commodity. But, a lot of that risk can be mitigated by a proper and comprehensive Bill of Sale. Not surprisingly, whether you are the Buyer or the Seller, I recommend you consult an equine lawyer to draft or review your Bill of Sale to make sure that it sets you up for the most positive outcome and protects you in the event the sale somehow goes sour.