The responsibility of the veterinarian (horses) taking into account the special features of the pre-purchase examination

The horse is suddenly standing on three legs, has a discharge from the nose or has a chip in the leg that needs surgery. The number of potential illnesses, injuries, and other problems that require a visit to the vet is high. But even in the lead up to buying a horse, it may be necessary to consult a vet as part of a pre-purchase check. In the best cases, the veterinarian applies a rivanol dressing, injects something, dispenses medication and, if necessary, performs an operation so that the animal’s health condition immediately improves. But often the treatment, diagnosis or pre-purchase inspection is not satisfactory. What are the veterinarian’s responsibility requirements?

Contract types

Depending on the content of the specific contract, this can in principle be designed as a service contract and as a contract for work and services. In principle, the contract is concluded between the person ordering the treatment and the veterinarian or medical clinic. Usually, the owner is the customer – cases in which, for example, a person involved in riding a horse consults a veterinarian should be considered and evaluated separately.

As a general rule, the contract will be designed as a service contract within the meaning of § 611 BGB, with the result that the vet owes not a similar success, but only one craftsman mode carried out the treatment. A veterinarian must act in accordance with the rules of current medical art and make a sincere effort to achieve recovery. However, if the animal continues to suffer from a medical condition, treatment is required craftsman mode For example, no duty to provide information has been violated, so the contracting party is also obliged to pay the agreed fee, etc.

A contract should not be classified as a processing contract within the meaning of § 630a BGB [vgl. z.B. MüKo-BGB/Busche, 8. Aufl. 2020, BGB § 631 Rn. 128]. Sections 630a et seq. of the German Civil Code are aimed at people, but not animals, with respect to information, clarification and documentation obligations [BT-Drs. 17/10488, S. 18]. However, a corresponding (= similar) application may be considered for some provisions [BT-Drs. 17/10488, S. 18; Jauernig/Mansel, 18. Aufl. 2021, BGB § 630a Rn. 9]. For example, there must be consent (cf. § 630d BGB) from the owner regarding the intervention on the animal, where the owner must be informed by the veterinarian in a manner similar to the education of human medicine, taking into account the animal welfare and financial aspects to be able to decide on the implementation treatment. In doing so, item 630e BGB can certainly be used as a guide. However, the duties of a veterinarian are limited in comparison to those of a human doctor [OLG Koblenz VersR 2017, 513 (513 ff.)].

By contrast, the contract between the owner and the blacksmith is usually classified as an employment contract within the meaning of §§ 631 et seq. BGB, so that the blacksmith also owes success – not just an action craftsman mode; The same can also apply to simple dental treatment, such as removing hooks on a horse’s teeth. The circumstances of each case must be taken into account.

Purchase Exception (AKU) Exam

The pre-purchase test before buying a horse should be viewed differently than this one. As part of the pre-purchase examination, the veterinarian owes a report on the health of the horse at the time of the pre-purchase examination [MAH MedR/Adolphsen, 3. Auflage 2020, § 20 Rn. 56]. The vet is obligated to document the AKU and the resulting results. The scope of the examination depends on the type of pre-purchase inspection (“large” / “small” pre-purchase inspection), which is determined by the person who commissioned the AKU. Both the seller and the buyer can entrust the AKU device. In light of potential liability – particularly in a business/consumer relationship – many sellers use AKU as an opportunity to assess a horse’s health status. Of course, responsibility also depends on the scope of the Aga Khan University. As a rule, the vet is not responsible for unrecognizable defects in a small AKU, for example. However, if there are indications to further investigation, your vet should point this out.

While – as indicated – there is usually a service contract, the contract in the context of a purchase inspection should be considered an employment contract within the meaning of § 631 BGB, such that the vet would have a result in the form of an AKU result without errors [BGH NJW 2012, 1071 (1071 ff.); BGH NJW 1983, 2078 (2078 ff.)]. This means that the veterinarian is obligated to the client to prepare the report, that is, the “work”, free from legal and material defects. [MAH MedR/Adolphsen, 3. Auflage 2020, § 20 Rn. 56]. If the AKU is performed incorrectly by the veterinarian, particularly resulting in the purchase, there may be liability under §§ 634 No. 4, 280 I BGB, with the consequence of being liable to compensate for the damage suffered by the buyer as a result of having acquired the horse due to the wrong results.

In general, a pre-purchase inspection contract can be considered as a contract that has a protective effect for third parties, especially if the seller is the customer. As a result, the buyer can also assert contractual claims against the vet if stringent requirements are met, even though it is not a contracting party to the Aga Khan University. [detailliert zu den Voraussetzungen: MAH MedR/Adolphsen, 3. Auflage 2020, § 20 Rn. 273 ff.].

Defects in AKU can result, for example, from missing checks that have been agreed upon, or from failure to identify defects.

In the event of defects, the seller and the veterinarian can be jointly and severally liable within the meaning of Section 421 of the German Civil Code; The responsibility of the veterinarian is not the responsibility of the seller (BGH NJW 2012, 1070 (1070 ff.)].

breach of duty

Outside of purchase investigations, violations of duty can arise, for example, from craftsman mode Treatment carried out, incorrect diagnosis, violation of the duty to provide information regarding various treatment options, – alternatives or risks of treatment. The veterinarian’s clear interests as well as his or her own wishes are critical to the type and scope of the duty to provide information – the material or immaterial value of the animal to the client can also be crucial [OLG München BeckRS 2020, 12; OLG München VersR 2005, 1546 (1546 f.)]. It should be borne in mind that a mere breach of duty does not yet lead to a claim for compensation. Rather, there must be harm, error, and a causal relationship between the breach of duty and the harm.

burden of proof

According to the principles of the Code of Civil Procedure, a person who wants to assert a claim is burdened with presentation and proof. In this regard, the client will have to at least explain and prove in the case of veterinary treatment within the meaning of § 611 BGB that the veterinarian made a mistake when performing the treatment, causing significant harm, given causation. On the other hand, in human medicine, a serious error in treatment likely to cause harm of the kind involved regularly reverses the burden of proof [vgl. z.B. BGH VersR 2005, 228 (228); vgl. auch § 630h Abs. 5 BGB]. This principle applies equally in veterinary medicine, so that the burden of proof can also be reversed here [BGH r+s 2016, 429 (431); BT-Drs. 17/10488, S. 18]. Within the framework of the Aga Khan University, the special features of the employment contract must be taken into account.

Protection from a legal perspective

In order to achieve as much security as possible, it is necessary to conduct a major investigation before purchasing. Even if a horse is not intended for display in major sports, recreational horses can also receive diagnoses, which involve costs that can compete with those of treating a sports horse. The results of the AKU are recorded in the purchase contract in favor of the buyer and seller.

Apart from this, careful documentation of treatments, diagnoses, and interpretations made is recommended. In the period leading up to operations in particular, attention should be paid to the explanations given by the veterinarian; Potential risks should be inquired when in doubt. Veterinarians must ensure that the insurance company has adequate coverage, especially when dealing with expensive animals.

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