by Lindsay Watt – written for the Scottish Edition of Equi-Ads
You have finally persuaded your partner/parents that buying a horse or pony is a good idea. You were persuaded months ago. What do you do now?
I cannot give you sound advice. You need to get help from someone who has experience of horses, and knows about them. I cannot do that. I can only bring out the legal aspects of buying a horse, so that along with an experienced friend, you have the tools necessary to make a wise decision at the end of the day.
It is not always possible, but the best way to purchase a horse or pony is to know it well beforehand. Even then there are some things you need to be aware of, such as when the contract is formed, and when the risk of loss or injury passes from the seller to the buyer.
A contract is a contract written or verbal
Most people think contracts are only formed when you sign a form, but that is not the case. Almost anything – and certainly horses – can be bought and sold by word of mouth. You can sometimes even buy things without saying anything. Try it next time you visit a supermarket. Put your goods on the conveyer belt, and when the total comes up on the till, pay it. You may have completed a contract without saying a word. Please now be civilised and say “Thank you” to the checkout assistant. You need to be careful that you don’t finalise the contract to buy your horse by accident before you done everything you want to protect yourself.
A contract is formed when an offer is accepted. After the contract has been created, you cannot include new terms, such as “I’ll have to have my vet looked at him”, or “is the tack included in that price”. So there is a world of difference between you saying “I’ll offer you £800” and “£800 seems a fair price”. Make sure you understand the difference, and avoid committing yourself until you are ready.
The classic rule used to be that when buying something, the “buyer had to beware”. That is still the case if you are buying from an auction (not recommended) or from a private individual. If you are buying on condition the horse or pony is suitable for a beginner, or had no vices, or has to be checked by your vet first, then those conditions need to be part of the offer you make, and the seller has to accept them. More important, you may need to prove they were incorporated into the contract, and the best way of doing that is to have something in writing, even though it is just an informal letter setting out the conditions you incorporate into your offer.
One thing you should think of is the risk of injury or death of the horse or pony before it reaches you. The legal position is that the risk of loss transfers to the seller to the buyer when the contract is made – not when the pony arrives at your field. You can change that, by specifying when the risk transfers to the buyer – particularly if the seller is delivering the pony to you. You can stipulate that risk only transfers to you once the horse has been safely delivered. Injury during transit is always a possibility. If you are taking out insurance over the horse, it should be effective from the time the risk passes to you, and you may choose to make it effective before then “just in case”.
Another common feature of buying a horse or pony from a private seller is paying a deposit, particularly if you are taking it on loan for a short period before buying. Deposits can be for one of two reasons. They can show the seller that the buyer means business, and has the money to proceed. They can also be paid on the understanding that if the buyer does not proceed with the purchase, the deposit is forfeit to the seller as a form of compensation. Don’t confuse the two, and preferably make it an amount you can lose if your vet tells you the horse has some fault or illness that means it cannot be ridden.
Sale of Goods Act
The law treats a horse or pony in the same way as it treats a transistor radio. It is a piece of “corporeal moveable” property. In other words it can be touched (unlike copyright, which is still property, but cannot be touched) and it can be moved (unlike a house). The Sale of Goods Act applies to all sales of corporeal moveable property and this includes horses. The Act incorporates certain conditions into contracts of sale, but differentiates between private sales, and sales in the course of a business.
In private sales, where you are buying a horse from an individual, rather than a business, there are two “guarantees” that are incorporated into the contract. The first is that the seller has a right to sell the horse. The second is that if the horse is sold “by description”, then it should match that description. “Description” is more about appearance than characteristics, but if the horse was described in an advert as “placid”, but was obviously not, then this may be a ground for seeking return of your money, but it would be difficult.
Is the horse fit for purpose?
If you buy from a seller “in the course of a business” then two other guarantees are built in. The first is that the horse must be of “satisfactory quality”. This term has been defined through many court cases. It usually means that one substantial problem may be involved but the lack of “satisfactory quality” may also be as a result of several minor problems combined. It will all be a matter for the judge to decide in each case. The second guarantee is that the “goods” will be suitable for the purpose they were bought. So if you ask a business for a horse suitable for a beginner, and the horse is a bit wild, then the guarantee had been broken, and the seller is in breach of contract, and you may be able to return the horse and get your money back. It is much easier to establish that a horse is not of “satisfactory quality” or “not fit for purpose” than that it does not match its description, and so a purchase from someone in business (I think this would include a riding school) may be safer than a purchase from an individual.
Be aware of court costs
No one wants to go to court, but if you have bought a horse that is wrong in some way, then if it is worth less than £3000 you can use the Small Claims Court at the Sheriff Court to make your claim. In the Small Claims Court, the use of solicitors is not necessary, and is actively discouraged. If you lose a normal court case, you have to pay the winner’s solicitors fees, which can be a very large amount. In the Small Claims Court, if you lose, you will only be required to pay expense up to a maximum of 10% of the value of the case. This means that if someone employs a solicitor in a small claim, then they will not recover the cost from the other side if they win, and will have to pay the solicitor’s fees themselves. The Scottish Courts website has good booklets telling you how to start up a Small Claim, and most courts have volunteers who are willing to help you draw up the documentation.
Finally, if you hand over a horse to someone else without a price being paid, then this is the contract of gift. Horses are sometimes gifted to the SSPCA when the owner is no longer able to look after them, and the SSPCA try to rehome them. Horses are often gifted at the end of their working life to others to act as a companion to another horse. The contract of gift transfers ownership just as effectively as sale.
So when a horse is transferred from one person to another it is a good idea to leave some written trace of whether the contract is one of loan, sale, or gift, so that you don’t have to try to establish this in any court action afterwards.
Buying a horse is not the same as buying a transistor radio. On checking, I discovered that our family has, over the years, bought eight horses. In only one case was the horse well known to (my daughter) beforehand. One was bought after our advert to buy a pony was answered by a farmer who had someone abandon their horse on his farm. We bought him for £50, and learned so much from him. In several cases we were convinced that the sellers were genuine, and fortunately we were right. We have been very lucky, and enjoyed the company of some wonderful companions. Four are no longer with us, and putting them to sleep was only done with sadness when absolutely necessary. A young colt we bought mated with our mare and produced a foal, who is now about 3 years old, and graces the paddock behind our house. But only this week I heard about someone who has bought a horse which she cannot ride, and will probably have to be put down because of a serious medical problem.
Buying a horse is not the same as buying a transistor radio. You will have to engage your instincts, and those of the experienced friend who comes with you. You may choose to ignore some of the precautions I have suggested, but do so through choice, and not through lack of knowledge. I sincerely hope you have as good fortune as we have had, and find a companion to share your summer days with, and to keep you company in the darker days of winter.
Next month Lindsay will discuss passport regulations.
If readers have any particular questions to put to our legal expert just email firstname.lastname@example.org