I Bought a Lame Horse: What Are My Legal Options?
At Equine Legal Solutions, unhappy horse buyers contact us for legal advice, telling us, “I bought a horse – it seemed sound when I tried it out, but now that I have it at home IT IS LAME!! Can you help me??” Has this happened to YOU? If so, here is what we need to know to help determine what your legal options are.
Did You Have a Pre-Purchase Exam?
If the buyer had a pre-purchase examination (PPE), the veterinarian who performed the exam assessed the horse’s overall physical condition, which provides valuable data about its condition on the day of the exam. The buyer should have received a written report from the veterinarian, as well as copies of any diagnostic imaging and/or laboratory tests (such as drug screening) that were included in the exam. If the buyer did not receive these records, they should call the clinic and ask for copies. Because the buyer paid for the exam, the buyer owns the exam records, and in most states, the seller cannot obtain copies without the buyer’s permission. PPE reports vary greatly in formatting and content, but the most informative reports are very detailed and explain exactly what the veterinarian examined and what her findings were. Some PPE reports even include photos and/or video of any notable findings.
What the pre-purchase examination report says is critical. If the PPE report notes the horse was unsound, and the horse is lame in the same limb today, that may limit the buyer’s legal options. Once the buyer is on notice that the horse has a physical issue, the burden shifts to the buyer to determine the nature and extent of the issue before buying the horse. If the buyer fails to do so, the buyer assumes the risk the issue might be worse and more serious than the buyer initially thought. However, there are exceptions – for example, if the buyer asked the seller about the lameness and the seller deliberately misrepresented the cause of the lameness (i.e., the seller knew the horse had navicular, but told the buyer the horse was lame from a hoof abscess).
A Note about Pre-Purchase Exams
ALWAYS have a PPE done by a qualified veterinarian who is not the horse’s regular vet (or the seller’s regular vet). A vet who specializes in equine lameness may be the best choice. Remember, even if the horse is “free,” assuming responsibility for a horse with an expensive medical condition will quickly exceed not only any value the horse may (or may not) have, but may exceed your bank account as well.
When you schedule the PPE, make sure to request the vet draw a blood sample during the exam and hold the sample until you authorize it to be discarded. A horse that seems sound during the PPE, but comes up lame days or even weeks after the purchase, may have been drugged to mask the unsoundness. If you have a blood sample from the time of the PPE, it can be tested for drugs that mask unsoundness. If testing discloses the horse was drugged, you may have a viable legal case against the seller.
Rarely will a vet outright “pass” or “fail” a horse on a PPE. What they WILL do is give you their observations and findings, their opinion of whether the horse will be able to perform your intended uses, the horse’s likely long-term prognosis, and if any maintenance may be required to keep it sound and healthy, such as corrective shoeing, nutritional supplements or medication. With the PPE information, you can then make an informed decision about purchasing the horse.
Is the Horse Lame Today?
Even if the buyer and/or her trainer can easily see the horse is lame, the buyer will need to have the horse thoroughly evaluated by a competent equine veterinarian to determine how lame the horse is, and why it is lame. Most vets will score lameness on a scale from 0 to 5 in each limb and then recommend further diagnostics to pinpoint the cause of the lameness.
Why is the Horse Lame?
The buyer must be able to prove what’s causing the lameness with a veterinarian’s diagnosis, and the diagnosis must be specific and conclusive. If the lameness exam report says something like “suspect navicular, recommend radiographs,” and the buyer elected not to have radiographs, the buyer can’t prove the horse actually has navicular.
Is the Lameness a Pre-Existing Condition?
The buyer must be able to prove the horse was lame at the time of purchase. For some chronic, long-term conditions, such as navicular and degenerative joint disease, a board-certified veterinary radiologist can examine radiographs of the affected area(s) and provide an expert opinion about how long the horse has probably had the condition. In other situations, the buyer will have to prove the lameness was pre-existing by obtaining vet records showing the horse was lame prior to the purchase. These vet records will have to show the horse was lame in the same limb, and ideally, that the cause of the lameness was the exact same condition causing the horse’s current lameness. With a few exceptions, notably Washington, state law provides the vet records belong to the person who ordered the treatment. As a result, a horse owner can’t get prior vet records for their horse unless the person who owns the records agrees to release them or the records are subpoenaed as part of a lawsuit.
Does the Seller Sell Horses as Part of Their Business?
Is the seller someone who sells horses as part of their business, such as a trainer or breeder? Or are they a private individual horse owner who sells a horse only occasionally? If the seller is in the business of selling horses, the sale may be subject to the Uniform Commercial Code, which provides that a warranty of “merchantability” is implied in every sale by a “merchant.” In laymen’s terms, this means when a breeder or trainer sells “a riding horse,” there is an implied term that the horse is sound enough to be used as a riding horse. The UCC warranty typically does not apply to one-off sales by private individuals. The implied warranty of merchantability can be overcome by a specific statement in the sale contract disclaiming this warranty. However, contract statements such as “as is, no warranties” or “seller disclaims all warranties” are typically not sufficient to disclaim a warranty of merchantability. In general, the sale contract must specifically mention the word “merchantability” in any disclaimer, and the disclaimer must be prominent (i.e., in bold or red text).
Did the Seller Know the Horse was Lame?
If the seller isn’t a “merchant,” the buyer must be able to prove that not only was the horse lame at the time of sale, the seller knew the horse was lame and didn’t disclose the lameness to the buyer. Vet records from the time the seller owned the horse can be useful to prove knowledge; however, the seller typically won’t agree to release those records post-purchase if the seller senses there is a problem with the sale. In such cases, the buyer can subpoena the records as part of a lawsuit.
Sometimes, another potential buyer decided not to purchase the horse after having a PPE. In many such instances, the buyer provided the exam results to the seller to help explain why they didn’t want to buy the horse and/or to help the seller care for the horse going forward. Social media can help identify other people who may have considered purchasing the horse.
In some cases, the horse has been suffering from lameness issues for so long that prior owners were well aware of it. If the buyer contacts the horse’s previous owners, the buyer may learn the previous owners sold or even gave away the horse with full disclosure of its lameness issues, including to the seller from whom the buyer purchased the horse. If the horse is registered, its registration records will typically reveal the names and locations of its previous owners.
Although not as common, there are other resources available to show the horse was lame during the seller’s ownership. A search of YouTube may turn up sale videos or videos from a show or other competition in which the horse is visibly lame. Show records may reveal the horse was disqualified due to lameness or a positive drug test. The horse’s previous farrier may have discussed the horse’s lameness with the seller or shod the horse with specialty shoes to try to get, and keep, the horse sound. An equine massage therapist, equine chiropractor, or saddle fitter may also have records of the horse’s lameness. If any of these witnesses are reluctant to become involved, they can be subpoenaed to testify and/or produce records as part of a lawsuit.
Did the Seller Disclose the Lameness?
If the seller disclosed the lameness to the buyer at the time of sale, the buyer probably won’t have a viable legal case against the seller. For example, if the seller told the buyer the horse had “a bit of arthritis in his hocks,” the burden shifted to the buyer to investigate the nature and extent of the hock issue before buying the horse. Also, if the seller released the horse’s vet records to the buyer prior to purchase and the lameness is reflected in those records, the buyer is typically considered to have known about the lameness at the time of purchase – even if the buyer didn’t bother to obtain the records or read the contents until after purchase.
What Does the Horse Sale Contract Say?
First and foremost, does the horse sale contract mention anything about the horse being lame or in any way unsound? If the contract discloses the lameness, the buyer probably won’t have a viable legal case against the seller unless the disclosure completely misrepresents the lameness. For example, if the contract says the horse is “tender” because the farrier “trimmed him a little too short,” but the seller knew the horse was really lame because of a previous laminitis (founder) episode, the contract “disclosure” typically won’t protect the seller.
As discussed above, an equine sale contract can successfully disclaim the warranty of merchantability and other warranties. However, an “as is” clause can’t overcome actual fraud – such as if the seller knew the horse was lame and represented it as being sound, drugged it so lameness would not be detected during the PPE, etc.
Does the horse sale contract have a return policy? Some sale contracts do, but there are usually limitations for returning the horse, as well as requirements for notifying the seller. If so, did the buyer follow the steps required to return the horse? If not, that may limit the buyer’s legal options.
A Note About Horse Sale and Purchase Contracts
Although the use of written horse sale and purchase contracts is becoming increasingly common, some horse sellers still do not use any sort of written contract at all, even for high-dollar horse sales. When horse sellers do provide written sale contracts or bills of sale, they often do so at the last minute, when the buyer has already paid and the horse is ready to step on the trailer. In such situations, the buyer often signs the contract or bill of sale without reading it carefully. But the buyer does so at his peril, because most horse sale contracts are designed to protect the seller, not the buyer. Because we recognize horse buyers need protection, too, we offer downloadable horse purchase contracts designed to protect the buyer that include opportunities for the buyer to ask the seller to put information about the horse’s health, behavior and training in writing. This simple step can act as a sort of “truth serum” – if a seller makes representations about the horse, such as that he is “100% sound,” but won’t sign a sale agreement stating the seller isn’t aware of any lameness issues, that is a huge red flag.
Savvy and honest horse sellers know the more they disclose about a horse in a contract, the more comfortable a buyer will be with the purchase, and full disclosure benefits the seller as well as the buyer.
ELS has a number of articles that are helpful for both buyers and sellers on our website.
What Did the Horse Sale Ad Say?
Was the seller truthful in the sale ad? If not, the ad could support a legal claim against the seller. For example, if the ad says the horse is a “great kids’ horse,” but the horse is a known biter, the ad can help show the seller misrepresented the horse. Note, however, that a horse seller can negate such representations by specifically disclaiming them in the sale contract. Smart horse buyers will read the sale contract thoroughly before signing, and take exception to any language that seems to contradict what the seller has told them about the horse.
I Think I Have a Case, Now What?
Even if you think you might have a legal case against the seller, it might not be worth pursuing, based on cost and other factors, such as:
For other articles about a wide range of equine legal issues, see ELS’s Legal Issues page on our website.
Did You Have a Pre-Purchase Exam?
If the buyer had a pre-purchase examination (PPE), the veterinarian who performed the exam assessed the horse’s overall physical condition, which provides valuable data about its condition on the day of the exam. The buyer should have received a written report from the veterinarian, as well as copies of any diagnostic imaging and/or laboratory tests (such as drug screening) that were included in the exam. If the buyer did not receive these records, they should call the clinic and ask for copies. Because the buyer paid for the exam, the buyer owns the exam records, and in most states, the seller cannot obtain copies without the buyer’s permission. PPE reports vary greatly in formatting and content, but the most informative reports are very detailed and explain exactly what the veterinarian examined and what her findings were. Some PPE reports even include photos and/or video of any notable findings.
What the pre-purchase examination report says is critical. If the PPE report notes the horse was unsound, and the horse is lame in the same limb today, that may limit the buyer’s legal options. Once the buyer is on notice that the horse has a physical issue, the burden shifts to the buyer to determine the nature and extent of the issue before buying the horse. If the buyer fails to do so, the buyer assumes the risk the issue might be worse and more serious than the buyer initially thought. However, there are exceptions – for example, if the buyer asked the seller about the lameness and the seller deliberately misrepresented the cause of the lameness (i.e., the seller knew the horse had navicular, but told the buyer the horse was lame from a hoof abscess).
A Note about Pre-Purchase Exams
ALWAYS have a PPE done by a qualified veterinarian who is not the horse’s regular vet (or the seller’s regular vet). A vet who specializes in equine lameness may be the best choice. Remember, even if the horse is “free,” assuming responsibility for a horse with an expensive medical condition will quickly exceed not only any value the horse may (or may not) have, but may exceed your bank account as well.
When you schedule the PPE, make sure to request the vet draw a blood sample during the exam and hold the sample until you authorize it to be discarded. A horse that seems sound during the PPE, but comes up lame days or even weeks after the purchase, may have been drugged to mask the unsoundness. If you have a blood sample from the time of the PPE, it can be tested for drugs that mask unsoundness. If testing discloses the horse was drugged, you may have a viable legal case against the seller.
Rarely will a vet outright “pass” or “fail” a horse on a PPE. What they WILL do is give you their observations and findings, their opinion of whether the horse will be able to perform your intended uses, the horse’s likely long-term prognosis, and if any maintenance may be required to keep it sound and healthy, such as corrective shoeing, nutritional supplements or medication. With the PPE information, you can then make an informed decision about purchasing the horse.
Is the Horse Lame Today?
Even if the buyer and/or her trainer can easily see the horse is lame, the buyer will need to have the horse thoroughly evaluated by a competent equine veterinarian to determine how lame the horse is, and why it is lame. Most vets will score lameness on a scale from 0 to 5 in each limb and then recommend further diagnostics to pinpoint the cause of the lameness.
Why is the Horse Lame?
The buyer must be able to prove what’s causing the lameness with a veterinarian’s diagnosis, and the diagnosis must be specific and conclusive. If the lameness exam report says something like “suspect navicular, recommend radiographs,” and the buyer elected not to have radiographs, the buyer can’t prove the horse actually has navicular.
Is the Lameness a Pre-Existing Condition?
The buyer must be able to prove the horse was lame at the time of purchase. For some chronic, long-term conditions, such as navicular and degenerative joint disease, a board-certified veterinary radiologist can examine radiographs of the affected area(s) and provide an expert opinion about how long the horse has probably had the condition. In other situations, the buyer will have to prove the lameness was pre-existing by obtaining vet records showing the horse was lame prior to the purchase. These vet records will have to show the horse was lame in the same limb, and ideally, that the cause of the lameness was the exact same condition causing the horse’s current lameness. With a few exceptions, notably Washington, state law provides the vet records belong to the person who ordered the treatment. As a result, a horse owner can’t get prior vet records for their horse unless the person who owns the records agrees to release them or the records are subpoenaed as part of a lawsuit.
Does the Seller Sell Horses as Part of Their Business?
Is the seller someone who sells horses as part of their business, such as a trainer or breeder? Or are they a private individual horse owner who sells a horse only occasionally? If the seller is in the business of selling horses, the sale may be subject to the Uniform Commercial Code, which provides that a warranty of “merchantability” is implied in every sale by a “merchant.” In laymen’s terms, this means when a breeder or trainer sells “a riding horse,” there is an implied term that the horse is sound enough to be used as a riding horse. The UCC warranty typically does not apply to one-off sales by private individuals. The implied warranty of merchantability can be overcome by a specific statement in the sale contract disclaiming this warranty. However, contract statements such as “as is, no warranties” or “seller disclaims all warranties” are typically not sufficient to disclaim a warranty of merchantability. In general, the sale contract must specifically mention the word “merchantability” in any disclaimer, and the disclaimer must be prominent (i.e., in bold or red text).
Did the Seller Know the Horse was Lame?
If the seller isn’t a “merchant,” the buyer must be able to prove that not only was the horse lame at the time of sale, the seller knew the horse was lame and didn’t disclose the lameness to the buyer. Vet records from the time the seller owned the horse can be useful to prove knowledge; however, the seller typically won’t agree to release those records post-purchase if the seller senses there is a problem with the sale. In such cases, the buyer can subpoena the records as part of a lawsuit.
Sometimes, another potential buyer decided not to purchase the horse after having a PPE. In many such instances, the buyer provided the exam results to the seller to help explain why they didn’t want to buy the horse and/or to help the seller care for the horse going forward. Social media can help identify other people who may have considered purchasing the horse.
In some cases, the horse has been suffering from lameness issues for so long that prior owners were well aware of it. If the buyer contacts the horse’s previous owners, the buyer may learn the previous owners sold or even gave away the horse with full disclosure of its lameness issues, including to the seller from whom the buyer purchased the horse. If the horse is registered, its registration records will typically reveal the names and locations of its previous owners.
Although not as common, there are other resources available to show the horse was lame during the seller’s ownership. A search of YouTube may turn up sale videos or videos from a show or other competition in which the horse is visibly lame. Show records may reveal the horse was disqualified due to lameness or a positive drug test. The horse’s previous farrier may have discussed the horse’s lameness with the seller or shod the horse with specialty shoes to try to get, and keep, the horse sound. An equine massage therapist, equine chiropractor, or saddle fitter may also have records of the horse’s lameness. If any of these witnesses are reluctant to become involved, they can be subpoenaed to testify and/or produce records as part of a lawsuit.
Did the Seller Disclose the Lameness?
If the seller disclosed the lameness to the buyer at the time of sale, the buyer probably won’t have a viable legal case against the seller. For example, if the seller told the buyer the horse had “a bit of arthritis in his hocks,” the burden shifted to the buyer to investigate the nature and extent of the hock issue before buying the horse. Also, if the seller released the horse’s vet records to the buyer prior to purchase and the lameness is reflected in those records, the buyer is typically considered to have known about the lameness at the time of purchase – even if the buyer didn’t bother to obtain the records or read the contents until after purchase.
What Does the Horse Sale Contract Say?
First and foremost, does the horse sale contract mention anything about the horse being lame or in any way unsound? If the contract discloses the lameness, the buyer probably won’t have a viable legal case against the seller unless the disclosure completely misrepresents the lameness. For example, if the contract says the horse is “tender” because the farrier “trimmed him a little too short,” but the seller knew the horse was really lame because of a previous laminitis (founder) episode, the contract “disclosure” typically won’t protect the seller.
As discussed above, an equine sale contract can successfully disclaim the warranty of merchantability and other warranties. However, an “as is” clause can’t overcome actual fraud – such as if the seller knew the horse was lame and represented it as being sound, drugged it so lameness would not be detected during the PPE, etc.
Does the horse sale contract have a return policy? Some sale contracts do, but there are usually limitations for returning the horse, as well as requirements for notifying the seller. If so, did the buyer follow the steps required to return the horse? If not, that may limit the buyer’s legal options.
A Note About Horse Sale and Purchase Contracts
Although the use of written horse sale and purchase contracts is becoming increasingly common, some horse sellers still do not use any sort of written contract at all, even for high-dollar horse sales. When horse sellers do provide written sale contracts or bills of sale, they often do so at the last minute, when the buyer has already paid and the horse is ready to step on the trailer. In such situations, the buyer often signs the contract or bill of sale without reading it carefully. But the buyer does so at his peril, because most horse sale contracts are designed to protect the seller, not the buyer. Because we recognize horse buyers need protection, too, we offer downloadable horse purchase contracts designed to protect the buyer that include opportunities for the buyer to ask the seller to put information about the horse’s health, behavior and training in writing. This simple step can act as a sort of “truth serum” – if a seller makes representations about the horse, such as that he is “100% sound,” but won’t sign a sale agreement stating the seller isn’t aware of any lameness issues, that is a huge red flag.
Savvy and honest horse sellers know the more they disclose about a horse in a contract, the more comfortable a buyer will be with the purchase, and full disclosure benefits the seller as well as the buyer.
ELS has a number of articles that are helpful for both buyers and sellers on our website.
What Did the Horse Sale Ad Say?
Was the seller truthful in the sale ad? If not, the ad could support a legal claim against the seller. For example, if the ad says the horse is a “great kids’ horse,” but the horse is a known biter, the ad can help show the seller misrepresented the horse. Note, however, that a horse seller can negate such representations by specifically disclaiming them in the sale contract. Smart horse buyers will read the sale contract thoroughly before signing, and take exception to any language that seems to contradict what the seller has told them about the horse.
I Think I Have a Case, Now What?
Even if you think you might have a legal case against the seller, it might not be worth pursuing, based on cost and other factors, such as:
- Small claims courts typically don’t have the power to require the seller to take the horse back. In general, they can only award money damages, and only up to the small claims limit (which varies widely among all 50 states).
- The amount of your damages, which is generally what you paid for the horse, what you have spent to diagnose and treat the lameness, and your out-of-pocket expenses to board and care for the horse. However, you have a duty to mitigate (minimize) your damages, so you can only recover the reasonable costs you incurred.
- How much it will cost to pursue your case. This amount varies widely, but except for small claims cases in which buyers pay a minimal filing fee (typically $15-$100) and can represent themselves, litigation is very expensive and may quickly exceed the amount of your damages. Unless you have a contract with an attorneys’ fees provision or a statutory claim that provides for attorneys’ fees, you generally won’t be able to recover your legal fees if you win. An equine attorney can review your situation and candidly discuss your legal options and the probable costs with you. Many unhappy horse buyers decide they would be better off spending their money to buy another (sound) horse instead of filing a lawsuit.
- If the horse is SO lame he’s suffering, keep in mind that if you sue, the horse will be crucial evidence in your case and usually cannot be euthanized without giving the defendants’ experts a chance to examine him. And the defendants won’t be in a hurry to spend money to have their experts examine him – they’ll wait as long as they can, and you can count on it being months. Meanwhile, the horse is suffering, and so are you. An equine attorney can help you assess how long you might have to wait to euthanize the horse, and whether that is a factor in bringing a legal case.
- If you resell the horse, you can only claim the difference between what you paid for the horse and what you received on resale. And if you resold the horse for more than you paid for him, you probably don’t have a legal case worth pursuing. Plus, the horse is crucial evidence in your case, so if you sell him or give him away, you will need to make sure you (and the defendants’ experts) have access to him during the lawsuit. Also, if you sell the horse without disclosing the lameness, that can adversely affect your legal options and put you at risk of being sued yourself.
For other articles about a wide range of equine legal issues, see ELS’s Legal Issues page on our website.