Monday, 11 March 2019

Animals and Contract Law

Nota bene: This blog is not a substitute for legal advice. If you require specific advice on your rights when buying or selling an animal, you should seek it from a qualified person, such as a solicitor. If you're a legal specialist on this matter and you'd like to tell me I've made an error anywhere, or if you have experience of going to court or other disputes over contract law regarding the sale of animals, I would love to hear from you!

Domestic animals are considered property under law, and when animals are bought and sold, normal contract law applies. As will be explained later, this isn’t necessarily a bad thing as it can be used to protect animals and their sellers and buyers when making contracts. Animals are also recognised by law as having welfare requirements enshrined in the Five Freedoms and are therefore a special kind of property where the right to own them comes with a responsibility for the owner to meet their needs.

This blog is about breed conservation, and most breed conservationists who sell animals are likely to be private individuals and not commercial sellers. That is, the animals they sell are surplus to a breeding programme and they do not make a profit out of the animals. This is in comparison to business entities like pet shops which exist in order to make a profit from what they sell. When you buy something from a business, this is covered by the Consumer Rights Act 2015 and there's an overview of the differences here. Pet shops and commercial dealers and breeders are generally not considered the best things for animals or breeds, and as you probably didn't come to read this blog because you are contemplating buying 500 battery-type pullets from a commercial producer for your egg farm, this post will concentrate on private sales.

When two people agree to the sale of an animal, a contract is formed, even if nothing is written down. This is a simple contract governed by ancient laws of the land. The seller agrees to provide the buyer with an animal that is as they have described and avers that they own the animal and are entitled to sell it, and the buyer agrees to pay a certain amount of money for that animal. This is called consideration, i.e. each party receives something of value in exchange. If either the buyer does not pay the price agreed or the animal is not as the seller described it, or has no right to sell it, then the contract has been breached, and the aggrieved party has the right to pursue the matter in court. Many animals, particularly livestock who do not have a high monetary value, are sold with nothing more than this basic spoken agreement and a handshake. Often this arrangement works well.

Written contracts are often used to record information such as the amount of money agreed to be paid by the buyer and the description of the animal given by the seller, or to specify further responsibilities of the buyer and seller to one another that go beyond basic legal requirement.

Speaking from personal experience, there has been only one occasion when I have been involved in a dispute over a private sale where there was a written contract. I have been involved in at least two disputes where I offered before the transaction to write a contract, and the other parties involved declined. Disputes can be over minor details up to outright rejection of an entire agreement, and usually get resolved amicably or acrimoniously or somewhere in between the two, but they are invariably stressful, and very unpleasant if the other person becomes irrational and unreasonable. If a dispute cannot be resolved between the parties, it can end up in the small claims court. Even if you are legally in the right it is stressful and a nuisance to either take someone to court or have to go there to defend yourself from a frivolous claim. A written contract that clearly details what’s expected of each party makes it much less likely any disagreement that arises will end up in court, and if it does, the contract gives the judge a clear picture of the agreement as it was made at the time to base the judgement upon.

The other benefit of contracts is that they allow you to go beyond the basic common-law contract of supply and demand. You can’t make a contract that gives either party fewer rights than which they are entitled, but you can specify more and greater rights. This is frequently used by responsible sellers to cultivate a good image and to provide after-sales support above and beyond what’s considered the basic standard. For example, some people I know buy all their appliances from the shop John Lewis because this company offers an extensive guarantee on the products it sells, despite the prices being higher than other shops. Good dog breeders frequently offer health guarantees against hereditary and congenital issues in their puppies, which gives them a better choice of homes for their pups and ensures they are kept informed about health issues in their bloodline.

Animals under law are considered chattels (portable items of property). The basic welfare standards set out by the Five Freedoms, which are the cornerstone of animal welfare in this country, still apply and again cannot be taken away by a contract, but you can specify in greater detail tailored to the kind of animal that is being sold within the contract. For example, all dogs are entitled to appropriate social contact as one of their Freedoms. However, the type of social contact that is required varies between breeds. For a breed that has developed as a companion for people, the contract can specify the dog must not be left without human companionship all day while the owner is at work and must live in the house. For a hound breed evolved to live in a pack, the contract might instead specify that the dog must have a suitable dog companion.

Contracts can also be used to confer extra rights and responsibilities:

Example 1: You breed Adriatic Uberweasels for the purposes of conservation and your own enjoyment. You have a weasel you have bred that has always been healthy but that is not suitable for your programme so you sell it as a pet to a boy who has researched Uberweasels carefully beforehand and is excited to be able to have a pet of his own. Two days later the parents of the boy contact you to say the weasel has died and the boy is terribly upset. You ask to have the weasel’s body back so you can take it to the vet to find out why it has died, and the family complies with this. The vet says the weasel died because it had a congenital heart condition that would have been asymptomatic and there was no way you could possibly have known about it beforehand. Under the law, you are therefore not liable for what has happened. However, you may feel morally that you would like to refund the boy all or part of his money, or offer him a replacement Uberweasel when you next have one.

Example 2: A friend who breeds horses is diagnosed with cancer, and asks if you will take off her hands a yearling horse as a gift because she isn’t currently able to look after it. You accept the horse (without looking it in the mouth) and train it, and compete with it and are successful. You are very pleased with the horse and use it for breeding. Three years after giving you the horse, the breeder who is now in remission asks for a large sum of money in exchange for giving you the horse, because she says she did not realise at the time the horse had such potential. You do not legally have to give the breeder anything as the horse was a gift (there was no consideration) and you were not told at the time that anything was expected in return. Morally you think it is right that you should give the breeder a much smaller sum of money, or a choice of an offspring from the horse, so offer this instead, and the breeder eventually reluctantly accepts a foal. But what has happened creates bad feelings and the friendship between you and the breeder sours.

These are both situations where the use of a clear written contract, with possibly a peppercorn consideration (see later) for example 2, would have made understanding between the parties involved much easier. A common and completely unjustified argument against using a contract is that ‘the other party is a friend or a relative and it would be offensive to expect a deal in writing as I expect to be treated fairly and will be fair in return’. While it’s bad enough to have a disagreement with someone you’ve met twice over something like this, it’s far worse to have a disagreement with someone you have known a long time and whose friendship you value and respect just because you weren’t sure or couldn’t quite remember what was agreed at the time.

There are many instances where a written contract can remind and clarify the rights given by law. I'm aware of a situation where an individual bought an animal in a hurry from a private seller with no written contract, and some days later it seems changed their mind about the purchase, claimed they didn't understand the husbandry requirements of the animal they'd bought and that this was somehow the seller's fault, and started demanding various amounts of money back as a discount on the purchase price they'd already agreed and paid, and threatened to sue over a number of outlandish claims about the quality and condition of the animal, one of such being that it was 'too expensive', and all of which were either patently false or unsupported by any veterinary evidence. None of these assertions had any legal merit. It was not clear if this was a case of total legal illiteracy or someone throwing mud to see what would stick in an attempt to recover money from a purchase that was reconsidered far too late. A simple contract summarising the relevant law explaining that the animal was sold as seen and the purchase was a binding agreement might (possibly) have helped in this situation. It's unfortunate that we live in a time when some people don't seem to understand basic laws of the land that are there to protect and help them, and this sort of thing is probably something that ought to be taught to young people in schools.

It's often said by the proverbial 'bloke in the pub' that written contracts won't stand up in court and aren't worth the paper they're written on. This isn't necessarily true and contracts can be legally binding if they are written properly. The basic requirements the contract has to comply with are as follows:

Consideration. Consideration is the agreement to trade items of value between the buyer and seller, usually the chattel (animal) in exchange for financial consideration (an agreed amount of money). If one party provides no consideration, the other party's consideration is considered a gift, and there is no contract under law. You may have heard the phrase 'peppercorn consideration' or legal references to peppercorns. A peppercorn is often used as a symbolic token consideration in a written contract over what would otherwise be a gift, to make the contract legally binding. Sometimes the 'peppercorn' refers to a nominal monetary amount, such as tuppence, a pound, etc. but, charmingly, under English law with its ancient roots it is still perfectly adequate for the consideration to be an actual peppercorn!

A contract cannot specify something that is already law. If you sell someone something and they use it in a criminal way, this is a criminal matter for the police and not part of contract law. Shops that legally sell knives or syringes aren’t held accountable if they are abused for stabbing enemies or taking illegal drugs. For example, there is no point putting a clause in a contract to say the buyer of a dog must ensure the dog wears a collar and an identity tag when in public and is kept under control. It is a criminal offence for a dog to be out of control in a public place or not to be wearing an identity tag, so it is a matter for the police rather than a civil matter.

If things are specified in the contract that any party must do or must not do, there should be a penalty written in to the contract. For example, if a contract says that the animal is sold as a pet and the buyer must not use it for breeding, but does not specify what happens if the relevant party disregards that clause and breeds the animal, the contract is technically unenforceable. That is, if it went to court, the judge would likely rule in favour of the seller because the clause has been breached, but would be unable to award any damages. If the contract specifies that the buyer must pay a specific amount of money, this is enforceable and the seller can then take action to get the money if the clause is breached. A contract that doesn’t have penalties written into it is said to have no teeth, or to be more of a ‘gentleman’s agreement’. However, if this kind of contract is used and one party reneges on it, the other is of course entitled to refer to it in order to demonstrate that the other party is dishonourable and ungentlemanly and it might not do their reputation much good. It also can be the case that if someone has dishonoured this kind of agreement, you can take the contract to a society or national body for the species or breed of animal, and if the person is making a habit of doing this sort of thing, they could end up being thrown out or not being able to register the animals they breed.

It must be reasonable. This is one of those woolly subjective terms that are left to the discretion of a judge if they do end up in court, so it’s impossible to draw a line precisely at what might be unreasonable. However, if in the example above the penalty in the contract for breeding a snake sold for £50 is specified to be a million pounds, it’s very likely that a judge would find this clause to be unreasonable and would not judge in the seller’s favour.

Even when the terms of a contract are binding, reasonable, and enforceable, enforcing a contract can still be difficult, time-consuming, expensive, and stressful. I’m aware of one situation where someone bought a puppy from a breeder with a contract specifying it had to be returned to the breeder if the buyer could no longer keep it for any reason, and must not be passed on to a third party. These clauses are used widely by caring breeders to ensure their dogs do not end up dumped in rescue or sold on to puppy farmers. Some years later the buyer left the country and sold the dog to a third party. In this position the seller does technically have recourse, but the seller would first have to find who has the dog and bring a claim against that person, who is in all likelihood an innocent bystander who bought the dog in good faith, on the basis that the person who sold it to them did not have title and the dog is rightfully the original seller’s as described in the contract. In these sorts of ownership dispute cases, the winning party who recovers the animal generally has to pay the loser’s reasonable costs in caring for the animal during the time it has been in their possession. If it has taken some years to discover this has happened and locate the animal, the costs could far exceed the original sale price of the animal. What would have to happen next is that both the original seller and the person who bought the dog from the original buyer would have to bring separate claims against the original buyer to recover their expenses, the buyer for the money they’d paid for the animal, and the seller for the expenses they’d had to pay the new buyer in order to recover it. It’s very difficult to sue someone cross-border, and this illustrates the importance to breeders of carefully vetting potential buyers of the young animals they’ve put their heart and soul into breeding.

If you're buying an animal and a written contract is offered, it probably means the seller cares about their animals and the people they go to. Read the contract carefully and make sure you understand what it requires of you and any additional rights you have, such as a health guarantee. Always feel free to ask the seller questions about their contract. They should be very happy to answer them! You can also ask Citizens Advice for inexpensive legal information over the phone. If you're buying an animal and the seller doesn't offer a written contract, it's not necessarily a bad thing, but you can always ask for one, which could be something as simple as a handwritten note describing the animal and the amount of money paid, signed by the seller. Make sure you understand your rights under the law before you buy an animal, and remember that it's your responsibility to ensure you understand how to look after the animal properly before you buy it, and that you examine the animal carefully or have someone more knowledgeable whom you trust do so prior to purchase and ask the seller questions about it (which they must answer honestly).

Incidentally, the word 'cattle' meaning bovine animals, cows and bulls collectively, shares its roots with the word 'chattel'. Historically, animals were the most valuable possessions of this type that people tended to own, and far more important to these ancient people than inanimate personal possessions such as clothing and furniture.

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