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Hippocheck: A veterinarian may not forget
The complainant claims damages because of the incorrectly executed hippocheck. The contract of sale should be dependent on the outcome of the hippocheck and the approval of this result by the applicant.
The examination was executed in absence of the buyer by the veterinarian who was employed by the seller. The following results were recorded in the protocol. "In the investigation today indications of the existence of significant health problems could not be found." was written under "Review of Findings". The section "Summary assessment" contains no further information. The fact that the defendant treated the horse for problems with its tendon sheath two years before was neither mentioned nor taken into account.
The complainant was informed by the seller that the horse passed the check. Because of this, he approved the examination result. After some time, he noticed that the horse was lame. He brought the horse into a veterinary clinic, where a chronic tenosynovitis of the fetlock tendon sheath and an ankle ring band syndrome was diagnosed. An operation did not improve this. There was no improvement observed in subsequent clinical exams.
Whether the hippocheck-contract was between the veterinarian and the purchaser or between the veterinarian and the seller didn´t matter to the court. Either way, the vet is liable for the damage claimed by the complainant, either because he has a contractual obligation to him, or the protective clauses in favor of the applicant were violated because of obligations included in the contract with the seller.
The veterinarian has the duty to inform his employer about the health condition of the horse properly and comprehensively. He is required to pass all the knowledge that he has acquired during the treatment period and any relevant information so it can be used in the decision to purchase. Therefore he also needs to consult his medical records on the horse. The vet owes a more thorough explanation of the significance of these findings.
Contrary to the actual situation the vet claimed, he did not recognize the significant health deterioration of the horse. He did not include previous findings which would have been of particular importance, that the forelimb lesion was apparent and worthy of treatment in 2004. The defending vet did not mention this in his breach of duty.
A contract with protective clauses in favor of third parties would come to the same result. The duty canon is no different from the obligations under the direct contractual relationship. The will of the contract parties to protect third parties, meaning the buyer, results from the purpose of performing a hippocheck for a purchase contract: The seller should be informed of exactly what he is selling and to be protected from problems he could not foresee and the buyer vice versa.
The District Court decided for the complainant in full. The plaintiff shall be treated as if he would have been, had he been properly informed in advance of the purchase. It is assumed that the complainant would not have purchased the horse had he been aware of its health issues, which is precisely why a hippocheck is a necessary component of the purchasing decision. Thus, the purchase price, treatment and maintenance costs are to be reimbursed.
The OLG Karlsruhe has rejected the appeal of the veterinarian by a court judgement on 08.12.2011.
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AG = Amtsgericht = local court
LG = Landgericht = district court
OLG = Oberlandesgericht = higher regional court
BGH = Bundesgerichtshof = german high court
