Would you like to fulfil the dream of owning a horse for yourself or your loved ones? Or do you already have horses and are considering an addition? Perhaps you already have a suitable animal in mind, but the decision to buy a horse naturally needs to be well thought out. A horse can be a loyal companion for many years and provide a livelihood.
Whether it is a leisure horse, a show horse or a breeding horse, the horse should meet your requirements. Some information should be obtained in advance to ensure that you acquire a healthy and accessible animal. In particular, the horse’s history and information about the dealer or breeder can be of enormous importance.
In addition, some legal aspects and special features should be considered so that the purchase does not cause any problems and does not turn out to be the wrong decision. These include, among other things drafting the purchase contract, warranty aspects, purchase inspections and regulations regarding the import and export of horses.
In the following, we would like to give you an overview of some essential aspects when buying a horse. In addition, Schlun & Elseven Rechtsanwälte offers you competent and committed advice and representation in all areas of equine law. Please, do not hesitate to contact us directly for expert legal assistance.
Written Contract of Sale
It is possible to conclude a contract of sale for a horse with a handshake and not put any agreements in writing. However, it is advisable to have a purchase contract in written form, which will serve as evidence in the event of a dispute. We will be happy to help you draw it up.
Additional to information on the contracting parties and the purchase price, parties should include an accurate description of the horse, including the name, sex, life number and, if applicable, the pedigree and various markings. The condition of the horse, the purpose for which the horse is being purchased, and its suitability should also be fixed in the purchase contract in as much detail as possible. This preservation of evidence can prevent later uncertainties and disputes.
A legal review or drafting of the purchase contract by a lawyer for equine law can be helpful. Caution is advised concerning sample purchase contracts, e.g. from the internet.
At Schlun & Elseven Rechtsanwälte, our equine lawyers will ensure that your contract of sale contains all necessary agreements. In particular, the validity of any general terms and conditions and warranty restrictions or exclusions on the seller’s part should be checked.
In the case of buying a horse between private persons, it is possible to agree on a complete exclusion of liability. If, on the other hand, it is a purchase of consumer goods, i.e. a purchase contract between a commercial seller and a private buyer, the exclusion of warranty is generally invalid.
If a provision is made in the purchase contract regarding the handing over of the papers belonging to the horse, this can also contribute to a smooth purchase. In any case, the equine passport (horse passport) and the title deed should be handed over to the buyer together with the horse.
Buyers may also want to see a breeding certificate (pedigree or birth certificate), as this is often important for breeding horses.
Warranty for Defects when Buying a Horse in Germany
In principle, the seller must provide the buyer with a horse free of defects (§§ 433 paras. 1 p. 2, 90a BGB).
A defect exists if the horse does not have the agreed quality at the time of delivery or if it is not suitable for the use of stipulated in the contract (cf. § 434 BGB). On the one hand, health defects come into consideration. On the other hand, a horse is defective, for example, if the breed or specific physical characteristics, such as the size, do not correspond to the corresponding agreement.
Besides, agreements can also be made about other characteristics, such as a certain level of training or suitability for competitions. It also makes sense to record the contract’s intended use, e.g. whether the horse is to be used as a show horse, dressage horse, breeding horse or beginner’s horse.
Suppose there is neither an agreement on the condition nor a contractually stipulated purpose of use. In that case, the suitability for normal use and the usual condition for horses of the same type are decisive. However, difficulties not infrequently arise with this determination.
If a defect occurs, the buyer must generally prove that it was already present when the horse was handed over (burden of proof). An exception exists in the case of the sale of consumer goods. If the defect occurs within the first six months after the handover, it is assumed that it was already present at the handover time. In this case, the seller must prove that the goods are free of defects (reversal of the burden of proof).
The buyer must inform the seller of the defect and request him to remedy the defect within a reasonable period. This is because the seller has the right to subsequent performance. This means that the buyer can only claim a possible reduction of the purchase price or rescission of the purchase contract if the subsequent performance is unreasonable or fails or is finally rejected by the seller.
The limitation period is generally two years from the handover of the item. In the case of purchases between private individuals, this regulation can be changed as desired. In the case of a purchase of consumer goods, however, the period may only be shortened to at least one year in the case of used goods.
In its ruling of 9.10.2019 (Case No. VII ZR 240/18), the BGH classified a two-and-a-half-year-old stallion as “used”, although it had not yet been used for its intended purpose as a riding or dressage horse.
However, there are no generally applicable age limits when a horse is considered “used”. Instead, the circumstances of the individual case are decisive.
Veterinary Examination of the Horse (AKU) before Buying a Horse
It is advisable to have a veterinary examination carried out before buying a horse. The buyer and seller can have this done by a veterinarian. The costs are borne according to the agreement between the two parties. A veterinarian checks the health of the horse.
At the same time, the physical suitability of the animal for the intended use is assessed. The results of the AKU are documented and can be included in the purchase contract as an agreement on the quality of the horse. However, it is essential to note that the horse’s condition at the time of the examination is recorded.
If an examination has already been carried out, it should be determined precisely when it occurred. If it already took place some time ago, it is not unlikely that the horse’s condition has changed in the meantime.
On the one hand, there is the clinical examination of the purchase, also called the small AKU. If additional tests (e.g. X-rays) are carried out, this is called a major inspection. How extensive the examination should be depends, among other things, on the amount of the purchase price and the purpose of the horse. For example, a more extensive examination is recommended if the examination involves a show horse that needs to be very resilient.
If the veterinarian makes a mistake during the examination, he is generally liable to his client. Suppose the buyer has commissioned the investigation and decides to buy the horse based on the vet’s incorrect findings. In that case, he may be entitled to claim compensation for the resulting damage from the vet (§§ 634 No. 4, 280 Para. 1 BGB). For example, treatment costs may be reimbursed. (cf. BGH, judgment of 22.12.2011, ref. no. VII ZR 7/11).
International Purchase, Import and Export of Horses
If a cross-border horse purchase is involved, some aspects of transport must be considered. Before transport, a veterinary examination should be conducted to determine the animal’s fitness for transport.
The documents required for transport depend on whether the transport is within the EU or across its borders.
For transport within the EU, a valid health certificate is required. When the horse is moved, this must be carried along with the equine passport. Special conditions apply to the movement of a horse from a third country into the EU.
A special certificate must be available for the import if the animal is a race or competition horse. Besides, the regulations of the respective third country must be observed. We will be happy to advise you on which rules you must follow and which documents you need in your specific case.
Questions regarding the place of jurisdiction and the applicable law should also be clarified in advance. The place of jurisdiction can be contractually agreed.
Otherwise, it is governed by international civil procedure law. Within the EU, the EuGVVO applies. According to this, each contracting party can be sued either at the place of its principal place of business or administration or where the delivery of the goods took place or should have taken place (place of performance).
Consumers can also assert their claims in the home country if the commercial seller carries out their activities there or directs them there (e.g. through advertising).
The parties to the contract can also agree in principle on which law is to be applied to the contract of sale. If there is no choice of law, the contract of sale is generally governed by the law of the country in which the seller has his habitual residence (Art. 4(1)(a) Rome I Regulation).
In the case of a consumer contract, on the other hand, the law of the state in which the consumer has their habitual residence is applicable, provided the trader carries on his business in that state or directs his company to that state (Art. 6(1) Rome I Regulation).
If applicable, the UN Convention on Contracts for the International Sale of Goods must also be observed. Due to the legal regulations’ complexity, it may be advisable to consult a lawyer to clarify these issues.
