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Summary of the rights and regulations relating to the sale and purchase of a horse

The purchased horse is to be delivered in a sound condition and free from defects (§ 433 Abs. 1 Satz 2 BGB – German civil code).
The horse is considered to be free from defects, at the time of sale, if it matches the agreed quality or if it is suitable for the use required under the contract. For example, if the parties agree in the purchase contract that the horse is "easy to load" or "trained to jump at 1 m 30", then these are conditions or usage agreements which, if they are not met, alone make the horse inadequate. In the absence of any agreement on the nature or intended use of the horse, the "ordinary use" or "conditionality of the same kind" shall prevail. Anyone who sells a horse without further agreement as a riding horse, is at least liable for the fact that the horse is fit to be ridden.
A seller must take care in advertising the horse, as a buyer is entitled to rely on statements made about the horse by the seller, anyone representing the seller, and in advertisements. Anyone who advertises a horse has a successful S dressage horse must be able to produce evidence that the horse has at least been placed at dressage competitions in the S category.
If defects occur before completion of the sale or transfer of risk liability is governed by 311 a BGB, under which the seller is only liable for damages or reimbursement of the buyers expenses if the seller was not aware of the defect. If a dispute arises as a result of the defect that occurs only after completion of the sales/transfer of risk § 434 ff. BGB and § 437 BGB are relevant. This usually allows the seller the opportunity to rectify the defect, either by removing the defect, or providing a replacement according to § 437 no. 1, § 439 para. 1 BGB. The buyer has right to choose which option he prefers. The seller can only refuse supplementary performance if it is unreasonable for him to do so. The seller bears the cost. As a supplementary performance the buyer can either demand the elimination of the defect or the delivery of a defect free replacement horse.
The requirement to provide a substitute horse is rarely an option when purchasing horses, as horses are usually not purchased on purely objective criteria such as colour, height, age or gender. On the other hand, it may also be in the interest of the buyer to give the vendor the opportunity to remedy the defect if there is a recoverable lack of training, if the buyer trusts the seller in this respect to remedy the defect. The seller has to bear the entire expenditure in the context of supplementary performance, such as transport of the horse to a veterinary clinic, veterinary costs and the maintenance of the horse during the period of repair. In case of chronic diseases, however, remedy of deficiencies may not be possible, may be incurable and an existing degenerative change cannot be eliminated in many cases. A partial cure is not a sufficient remedy, even if the residual problems in regular follow-up examinations are eliminated. The second stage can then be withdrawal or redaction from the contract. In addition, a claim for damages, in particular with regard to the defect damage, such as the lost profit, is conceivable. The resignation requirements in detail state: No completely insignificant defect, reasonable period for treatment, two failed attempts to treat or impossibility of treatment or serious, final refusal of the seller, or special circumstances, in particular unreasonableness or loss of interest due to default. The same conditions apply for the reduction as for the resignation.
Claims for damages require: reasonable period for supplementary performance or its dispensability and fault of the seller (intent or negligence). In case of impossibility of performance and supplementary performance only compensation remains, but now without setting a deadline.
The buyer is often not entitled to any compensation without having determined a reasonable period for supplementary performance. After the conception of the law of obligations, the supplementary delivery is not absolutely impossible with a purchase of ascertained goods.
The supplementary performance is possible, as far as it is acceptable and the delivered good is economically equivalent to the one originally owed or as far as the delivered good itself is improved. When buying a horse, such a case usually only exists if the purchased horse is "repaired". The buyer's interest in performance cannot be fulfilled by supplementary delivery of a similar horse with the same essential characteristics, since two horses are not that alike and the partnership between horse and rider is always important when making a purchase decision. This can be decided by neither the seller nor a court in place of the rider.
Instead of compensation for damages, the buyer may demand the reimbursement of the expenses incurred in vain, which he has made in trusting the receipt of the service and was entitled to do so reasonably. For example, he who buys a head-shy horse knowing of the existence of this defect and then trains the horse to remove this defect, may, if he is entitled to withdraw from the contract for any other reason, demand reimbursement of the treatment costs in addition to reimbursement of the purchase price.
The seller is liable for two years from the date of delivery of the horse, in case of fraudulent concealment even three years from knowledge or negligent ignorance of the buyer of the defect, but no later than ten years from the date the claim is born.
Deviating agreements are possible except for wilfull intent, but restrictions apply to the so-called consumer goods purchase. A private person as a seller can shorten the prescription until the expiration of the statute of prescription. In contrast, an entrepreneur can shorten the prescription to a maximum of one year when selling the "good“ horse, if the good is used.
Preprinted contracts - also samples from periodicals - apply according to settled case law of the BGH and the instance jurisdiction (eg OLG Hamm of 13.01.2011, I-2 U 143/10 or OLG Oldenburg, judgement of 27.05.2011, 6 U 14/11) always as terms and conditions, even if the user has taken the effort to write off the contract. As a result, liability cannot be completely excluded, even among private individuals. This is only possible by an individual contract.
Of course, all the above statements on the warranty do not apply if the buyer had knowledge of the defects prior to the purchase. Then he can derive no claims from these shortcomings, but only from unknown defects. The same applies to gross negligence ignorance of the defect, unless the seller has fraudulently concealed the defect or assumed the warranty for a property.
If the seller was malicious, i.e. he deliberately concealed a known defect, he is liable in any case and any agreed disclaimer remains ineffective. Outside the sale of consumer goods, other individual contractual agreements are possible. Here most of the regulations mentioned in this paper are largely dispositive. Limitations of the freedom of contract are only limitation of the warranty and intent. In addition to the special case "auction", the so-called consumer goods purchase, which has already been mentioned several times, forms another special case. The prerequisite for the existence of a consumer goods purchase is first of all a certain party constellation: An entrepreneur sells something to a consumer. In this case, the law takes in account the entrepreneur´s experience as an advantage and therefore limits the discretionary freedom of the parties for buyer protection reasons.
An entrepreneur is somebody who acts in the course of the legal transaction in the exercise of his commercial or independent professional activity. An entrepreneur is any person or association that offers goods in the market on a scheduled and permanent basis for money. Registration in the commercial register is not required. Horse traders, breeders as tradespeople or farmers, riding instructors, riders and riding school operators are all considered entrepreneurs. However, the buyer must prove the entrepreneurial quality of the seller before he can benefit from consumer protection regulations. The differentation between a hobby breeder and an entrepreneur is to be defined for each individual case. Although the Federal Court of Justice (VIII ZR 173/05) stated on 29.03.2006, "In the sale of consumer goods (§ 474 BGB), the existence of a trade and thus the entrepreneur's position of the seller does not presuppose that his business pursues the intention of making a profit." But a real clarification is not yet reached. It´s not possible to determine whether the sales activit is carried out "on schedule and on a permanent basis " on the basis of fixed criteria (duration of at least one year or at least 10 business deals per year, etc.). On the other side is the only occasional activity, so the hobby and occasional breeder. Because with one-time or occasional actions one does not yet reach the level, which justifies looking at the breeder as an entrepreneur. Here, the circumstances of the individual case decide, whereby it is to decide whether by regular or repeated breeding a permanently calculated source of income should be created, and whether a minimum organizational effort is operated. It depends mainly on the size of the farm and the sales activity. It is true that entrepreneurship is primarily determined by objective criteria. But, anyone who appears as a small breeder but big as "Schulze breeding company" in magazines and on the internet, makes corresponding advertising and otherwise behaves like a normal businessman, looks more like an entrepreneur than the one who only lives by word of mouth.
Unfavourable deviations or circumvention of the warranty rules are therefore in principle ineffective. Only claims for damages can be excluded and the statute of limitations can be reduced to one or two years, depending on whether the purchased item is "used" or "new". In the case of a sale of consumer goods, the refutable presumption is that the item was defective on delivery to the consumer, if the defect occurs within six months of delivery. This assumption does not apply if it is incompatible with the nature of the item or the defect (for example, acute bronchitis five months after purchase). This so-called "reversal of the burden of proof" is a considerable relief for the horse-buyer, because normally the buyer bears the burden of proof that the defect he claimed had already existed at the time the horse was handed over. However, depending on the nature of the deficiency, the evidence becomes more and more problematic as time goes on. According to the latest BGH jurisprudence, the buyer merely has to prove that the animal has a condition ("shows") before the end of the six months since the transfer of risk, which would constitute a defect, if this had already existed at the time of the passing of the risk. If there is a defect then the seller can invalidate the legal presumption by proving that the defect was not present at the time of delivery. This is usually just as difficult as the proof that the defect was present. Veterinarians will say many times, it may be possible, but it cannot be proven. This may result in the buyer being unable to return a horse he has acquired from a private individual, whereas he may return the horse if he has purchased it from an entrepreneur. In that regard, it is often of decisive importance for the outcome of a dispute as to who bears the burden of proof, i.e. who must prove that the disease or lack of training existed at the time the horse was handed over or not.
When drafting the contract, it is essential to ensure that all agreements are completely written down and that no further oral agreements are made. The commercial seller must document all defects and peculiarities of the animal, exercise restraint in descriptions and advertising statements and observe expectations of the buyer as they determine the contractually presupposed purpose. Other safe ways of limiting liability are not available to the commercial seller. A careful purchase or sales investigation together with complete documentation in the certificate should be self-evident. Everything that is contractually fixed can influence the outcome later in the process. Since witnesses are often unreliable in their perception and expert opinions are always costly, every effort must be made to eliminate these two detrimental evidences, knowing that this is almost never successful.
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© Rechtsanwalt und Mediator Frank Richter 2017