Legal Letter: Equine Lawyer Stephan Wensing on Latent Defects

Thu, 05/19/2011 - 13:37
Legal News

The Netherlands are a small country but big in horse cases. Because Holland has a leading role in the equestrian world and is a key player in international horsedealership, it is not surprising that sales disputes arise in Holland.

Many foreign buyers have to deal with Dutch equine law. Although there is no specific equine law in the Code, there are specialized equine lawyers and consequently judges as well get more informed about equine law cases. Recentely I discovered that, for instance, one of Coby van Baalen's cousins is a judge in civil procedures and has affinity with horses. This is a very pleasant fact, knowing that a judge can also understand the jargon.

Most legal equine disputes involve horse sales. What does that entail? A horse is tried, tested, examined and the test results are often also seen by a the buyer's veterinarian. At first sight there is almost nothing to worry about, but reality is quite different. In practice the buyer does not know what happened with the horse before buying it. The horse can be prepared and that is not easy to find out. A difficult horse can be made tired and a slightly lame horse can be held in the stall for a few days: all to mask problems.

Fortunately there is a vet check, but how thorough and exact is such a pre-purchase exam? The clinical examination is a snapshot, which can be different on another day. The assessment of X-rays have proven to be tremendously subjective and variable. Furthermore, more than half of the buyers forget to have the neck examined, or the shoulders and the loins. The vet check also does not include an examiniation under sadle. Isn't that striking, because the horse is being sold as a "riding" horse. In short it happens easily that the horse shows veterinary problems after the sale, so that the pre-purchase exam no longer befits the health status of your horse because it has become unfit for riding.

When such situations occur a lengthy court case can arise. In Holland law protects the consumer above the professional horse dealer. For example, if a horse has ataxia within six months after purchase, even though this was not visible during the sales, there is a statutory presumptive evidence and the seller must prove that the horse did not suffer from ataxia before the sale was done. This is obviously very difficult because ataxia can be a progressive process. What about tendon injuries? These are not visible on X-rays and old tendon injuries can flare up during intensive use. The misery is incalculable.

In practice, I often notice that the defects are discovered after delivery within a short period of time. The buyer feels cheated and that is not always correct. A horse is a life animal and a vendor can not give life-time warranty. The Equine Faculty in Utrecht, one of the most prominent veterinary universities in Europe, has already determined that a horse is susceptible to change in feed, care and training. During that period, previously hidden defects appeared visible. When it was announced that Totilas would not be competing at the 2011 CDI Hagen due to a hoof sore, I immediately had to think about these small changes in care taking and training, which can have major effects on the horse's life.

Because consumers are protected by law in The Netherlands they are in a good position to return the horse if a defect occurs within 6 months of the sale. It is up to the seller of the horse to prove that the horse was sound and healthy when he sold it. This has proven to be quite difficult.

As a lawyer I recommend all buyers to be present themselves at the pre-purchase exam. Make sure you always take X-rays of the neck and back and video tape the entire clinical exam. Make sure that the veterinarian also sees the horse under saddle and have a test rider assess the horse as well so you have a second opinion. Happy horse hunting!

- by Stephan Wensing - www.paardenadvocaat.nl

Weda en Wensing Advocaten, a professional Dutch law corporation, is owned by renowned Stephan Wensing, a Dutch attorney whose practice is
only focused on equine disputes. Stephan Wensing has been an equine
attorney since 2002. As a horse owner, trainer and judge himself he
combines his two passions: horses and law. Stephan recognized the need
for an attorney with detailed knowledgeable in legal issues affecting
equestrians. Wensing offers a full-service litigation firm that
specializes in equine-related transactions and dispute resolution
throughout Europe.