| |
|
When a Gelding is Not Really a Gelding
Q: Six
months ago, I bought a 13 year old gelding advertised as
“well broke.” The seller told me the horse had been
gelded at age 5, before she bought him. This “gelding”
attacked one of our other geldings out in pasture and
nearly killed him. We did not have a prepurchase
veterinary exam before buying the horse. When I had the
vet out, he did a hormone test and determined that the
“gelding” was really a stallion. We had the horse
operated on and the vet removed a retained testicle. Do
we have any recourse against the seller?
A: Generally speaking, in horse sales
transactions, the industry standard is “buyer beware,”
and horses are sold “as is.” However, several factors
can overcome an “as is” presumption, such as if the
seller failed to disclose a material defect they knew
about at the time of sale. Another factor is if the
seller intentionally and significantly misrepresented
the horse. Here, we have a horse the seller represented
to be a gelding, and that representation turned out to
be false. The representation is clearly material, as
most buyers shopping for a gelding specifically do not
want a stallion. The pivotal question is whether the
seller knew the horse had a retained testicle at the
time of sale.
Here, the
seller has said the horse was gelded prior to her
purchase. Assuming that is true, how would the buyer be
able to prove what the seller knew? If the seller had
her own reasons to suspect that the horse might have a
retained testicle, she might have had the horse tested
herself, and veterinary records would reveal the
results. However, because veterinary records are the
property of the person who orders the veterinary
treatment (and not the current owner of the horse), the
veterinarian would not release records to the buyer
without the seller’s permission. If the seller didn’t
give her permission, the buyer would have to subpoena
those records in court.
Now, was “well broke” a material misrepresentation?
Equine experts could argue the finer points of what that
phrase means, but generally, it implies a horse that is
well trained to ride. Here, the buyer doesn’t mention
the horse’s behavior when ridden, so we will assume that
the horse really is “well broke” and therefore not
materially misrepresented in that fashion.
Let’s say
the buyer is able to determine with some certainty that
the seller knew the horse had a retained testicle and
didn’t disclose it. What would the buyer’s damages be?
The horse is now a true gelding, but it cost the buyer
money for the operation. Presumably, the buyer also had
vet bills for the horse who was almost killed. The
buyer’s damages would be the sum of those two sets of
vet bills.
Can the buyer return the horse for a refund? At this
point, the buyer has made a material change to the horse
(i.e., gelding it), so it would be impossible to rescind
the sale contract and put the parties back into the
positions that they were in prior to the sale. In
addition, courts are typically more likely to award
money damages than equitable remedies (i.e., making a
party do something).
|
|
|
