Legal Letter: Deviation or Deception

Fri, 12/21/2012 - 15:07
Eurodressage F.O.C.U.S.

I recently bought a pony for my daughter. The seller knew that the pony had something in his eye but did not mention this to me during the first viewing of the pony. After I bought the pony, it turned out to be a serious tumor. So from a legal viewpoint has this been deception or deviation?

The disappointed buyer will generally quickly accuse the seller of deception. After all the horse is not suitable for the purpose it was purchased  and the seller should have known that. The seller has had to conjure up lies to lead the buyer astray and the buyer proceeded to acquire the pony based on incorrect information.

It is difficult to create a separation line. These occurrences in law -- deviation and deception -- are intertwined. For deception there must be intent, concealing something intentionally. When the seller has important information which the buyer needs to know but hasn't been told it, than we deal with deception. It could also be that the seller did not know certain (health) facts about the horse (this cannot be proven), in which case one would sooner speak of deviation: a misrepresentation of the facts.

In the matter of a sale buyer and seller are most often directly opposite to one another. The buyer accuses the seller of deceptive actions and the seller washes his hands in innocence. Many sellers think they go unpunished if they can prove that they did not known that the horse was afflicted by a hidden defect. This statement, which I hear on a regular basis, is totally incorrect. A seller will always be responsible for the horse complying to the sales contract. A seller's ignorance does not mean that the buyer cannot rely on his rights as a buyer to get an annulment of the purchase agreement.

Often the seller knows more than he reveals. For example he could mask a horse's character flaws at the time of the visit. There are also horses that do well for a while and then, for no apparent reason, are performing poorly. There are also horses with soft tissue problems during the visit that can be camouflaged. Even serious tendon injuries can remain hidden with sophisticated management. So, watch out! It is impossible for a buyer to discover all problems that might be masked during a viewing and a sale. The buyer often only finds out after a little while, after acclimatization, as the horse is also sensitive to change in stable, grooming and training.

At a first viewing of a horse even the most experienced riders can miss certain aspects which may be important, such as hoof problems, cornage,  vices and in my case a tumor in the eye. Furthermore a pre-purchase exam provides no absolute certainty, as the horse is not always shown under the saddle and many parts of the horse are not investigated.

Deception or deviation?

Overlooking defects, as described above, is legally categorized as deviation. This is ignorance, misrepresentation of the facts and if a fair representation was given the sale would not have been finalised or maybe defined differently. Deception takes it a step further. In that case it concerns more the willful and intentional misleading of the buyer. Here are some examples:

An owner sells a horse that he himself has recently acquired, despite having received a negative recommendation from the vet who carried out the pre-purchase exam. The seller does not inform the new buyer of this negative report. The court will state that this is deviation because the buyer thought he was fully informed which was not the case. The court dismisses deception on grounds of the fact that it could not be proven that the seller deliberately withheld information. In another case of a forced sale of a valuable dressage horse the seller was accused of withholding information about the veterinary condition of the horse. The horse was ridden which implied that nothing would be wrong. However, the horse was diagnosed to be terminally ill. The court ruled that it had not been proven that the seller possessed such knowledge so that one could speak of deception.

In a third case the buyer accused the seller of withholding important information about an old injury. The judge did not convict the seller, because the injury was an accident, from which the horse had already healed.

I therefore conclude that the bar is set high when suing for deception. In case of a lawsuit it actually does not make much difference, because both deviation and deception have the same legal effect, namely the annulment of the purchase agreement.  However, the legally popular term "deception" sounds better to the buyer because nobody wants to buy a horse and  then disappointed.

- by Stephan Wensing -

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.

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