As an equine attorney, I have some issues with the “Full Disclosure” article by James Clark-Dawe in the August issue of Stable Management. I think Mr. Clark-Dawe’s article may scare off readers needlessly when he cautions owners about selling horses with known past behavior problems and the potential for lawsuits that comes with it.
While Mr. Clark-Dawe’s take on the issue is technically correct, there is additional protection from lawsuits. First of all, most states have enacted some form of an equine liability act that usually defines horse activities as “inherently dangerous.” The statutes further note that horses tend to exhibit dangerous propensities, meaning that they are animals that may on occasion buck, rear, spook, bite, etc. and these states recognize that even the quietest horse may bite, spook or rear on occasion. The article suggests that the horse in question is doing something that a normal horse would not, to which I respectfully disagree.
I would recommend to the reader with the question that he include on his bill of sale that he is not making any representations or warranties on the behavior of the horse, and that the buyer is taking the horse “as is.” A carefully written bill of sale will protect a seller from the types of lawsuits that Mr. Clark-Dawe referenced.
I always advise my clients to be candid with purchasers about the horse that is being sold. A seller who knows that his horse is dangerous should always warn the buyer. However, to suggest that if a horse ever exhibits any sort of “animal” behavior, that this will alone make the horse dangerous and decrease its value is a bit extreme. It is for this reason that a seller should have an attorney prepare a detailed bill of sale that will protect the seller. A properly worded bill of sale will act as a blueprint for how the customer may remedy any problems with the sale.
When you weigh the costs of a properly drafted bill of sale against the costs of litigation, you will find that it is the best solution.
—Caroline C. Cooley, Littleton, Colorado
I agree with the Ms. Cooley that a bill of sale is an important aspect of the sale and provides many protections to the seller. My answer, however, was meant to address just the disclosure part of the sale. I would recommend and expect that the writer would use a bill of sale in this transaction.
It is difficult to determine from the original writer's description to decide whether he felt that the horse's behavior fell within normal parameters. My assumption was that it did not, and answered accordingly. The inference that this horse's behavior is within normal parameters is reasonable, based upon the writer's description. If so, then Ms. Cooley is correct in her statements regarding the inherent risks associated with horses.