Finally, a newly purchased horse was in his own stable when he suddenly became lame a few days after his arrival. A scenario the buyer or buyer had to try. Of course, in such a case, it is reasonable to believe that the animal was already ill before it was delivered by its previous owner and therefore may have been sold. As a result, horse owners often claim compensation, for example for veterinary costs incurred or withdrawing from the purchase contract. However, the prerequisite for a claim for damages or withdrawal from the purchase contract is the existence of a defect. The current article explains that this is not usually easy to confirm.
First of all, it must be borne in mind that horses are basically treated like things, even if they are not things, § 90a sentence 3 BGB. As a result, warranty rights under sales law play a decisive role in the question of whether the buyer can assert rights or claims against the seller – there are special regulations that apply only to the purchase of animals This is the law of Lata No (within the Purchasing Act regulations, however, there is an express reference to live animals in relation to reversal of the burden of proof, § 477 para 1 sentence 1 BGB). In principle, a contract of sale is concluded between the seller and the buyer in accordance with Article 433 of the German Civil Code. Seller complies, § 433 Abs. 1 S. 1 BGB, delivers the item to the buyer and takes ownership of the item. At the same time, the seller is obligated to deliver the commodity to the buyer free of material and legal defects, Article 433 Paragraph 1 sentence 2 BGB. In return, the Buyer undertakes to pay the agreed purchase price and accept the item purchased, § 433 Paragraph 2 BGB. Above all, freedom from physical defects is a particular problem when buying a horse.
§ 434 Paragraph 1 BGB The law regulates when the thing, and therefore the horse as well, is free from material defects. § 446 BGB states that the risk of accidental loss and deterioration passes to the buyer upon delivery of the item sold – usually when the buyer takes the horse from the seller. It should therefore be noted that if, for example, a young tooth is sold but will remain with the seller for further breeding after the purchase price has already been paid, delivery does not necessarily take place. In order to avoid the seller continuing to bear the risk of deterioration, especially through injury, special attention must be paid here to delivery.
An item is free from defects if it satisfies the subjective, objective, and assembly requirements at the time of risk transfer, § 434 BGB. The latter is of course less important in relation to the purchase of horses. In principle, however, all three components must be fulfilled with equal priority and cumulatively [BeckOK-BGB/Faust, 62. Ed., 01.05.2022, § 434 Rn. 7]. § 434 Clause 2 and Clause 3 BGB refer to objective and subjective requirements and explain when they are to be emphasized. Essentially, it can be said that a thing, or in this case a horse, essentially satisfies personal requirements if it is of the quality agreed between the parties and is suitable for the use required by the contract.
The concept of a purchase defect did not change until 2022. While the existence of a previously agreed quality was sufficient to assure freedom from defects, and the usual quality was resorted to only in the absence of a quality agreement, this tiered relationship no longer exists in this model. Instead, all of the above conditions must be met cumulatively. In addition to the agreed quality, the item must be suitable for normal use and have the usual quality for items of the same type. That is, it is not enough if the thing complies with subjective requirements, but does not meet the objective requirements [BeckOK-BGB/Faust, 62. Ed., 01.05.2022, § 434 Rn. 7]. The substantive requirements can in principle be waived, as Clause 434 Clause 3 Clause 1 BGB makes clear. However, Article 476 BGB sets high requirements for the purchase of consumer goods. If contractually agreed quality cannot be reconciled with objective quality requirements, the agreed upon quality must be given priority. If there is no conflict, it should be made clear by interpretation whether the item should satisfy only subjective requirements – or whether objective requirements must also be taken into account, which will generally be the case [BeckOK-BGB/Faust, 62. Ed., 01.05.2022, § 434 Rn. 9].
The reversal of the burden of proof in favor of the consumer applies in the context of the purchase of FMCG in accordance with Section 477, such that it is assumed that a defect that occurred within six months of the transfer of risk was already present at the time of the transfer of risk – that is, the horse was already ill at the time of the transfer. The buyer does not have to prove that the cause of the defect is within the seller’s risk range as long as the defect can be proven within the first six months after the risk has been transferred. However, it should be noted that § 477 BGB does not apply if the element and defect in public display preclude the application of § 477 BGB because horses are living creatures. [BGH NJW 2006, 2250]For example, if an animal has a disease whose incubation period is shorter than the time between the passage of danger and illness [vgl. LG Essen NJW 2004, 527].
We talk about buying FMCG when there is a consumer besides the buyer; The seller is a businessman, see § 474 BGB or § 14 BGB. In the context of horse breeding, the assertion of entrepreneurship can be problematic, particularly when it comes to “horse breeding”. Here the seller can certainly be classified as a consumer – but a generalized approach is not possible.
Examples of deficiencies (absent) in a horse
Several examples from case law can be used to assess whether a defect exists. Even if previous decisions are still made regarding the old concept of physical defects, they are crucial to the classification of defects in horses. In principle, defects in a horse can arise from different sides. X-ray findings, illnesses that appear only when Jupiter arrives, and old, healed injuries are especially common.
The Frankfurt Higher Regional Court ruled on September 14, 2021 [BeckRS 2021, 28243]Scarring in the corners of the mouth is not, in and of itself, a chronic disease. Rather, it is a discovery that can occur as a result of the evolution of the rider and does not allow any possible conclusion to be drawn about the disease at the time of the transfer of risks. In the basic case, the buyer bought a horse for 65,000 euros from the seller who runs a stable for breeding and training. A purchase inquiry has been made. after delivery, there were problems with the animal leaning; The vet diagnosed with a right angled opening of the mouth and a protrusion in the left chest. The buyer claimed that the scarring and knots were the cause of the connection problems. The court also ruled that advertising for an animal with athletic prospects does not mean that the seller wishes to ensure that athletic prospects are also achieved. The development forecast for the animal is uncertain and purely speculative in nature, so it requires express agreement that the seller assumes the guarantee for this. There was no such express agreement.
BGH had already ruled in 2007 [NJW 2007, 1351]That the suitability of a clinically unclear horse for the contractually required use as a riding horse is actually not affected by the fact that due to deviations from the ‘physiological norm’, there is little possibility that clinical symptoms conflict with a future riding horse. The usual nature of the animal does not mean that it corresponds to an “ideal standard” in all respects. “Deviations of a sold horse from the “physiological norm”, which are within the usual condition of similar horses, should not be classified as a defect because the “market” reacts to such deviations with price reductions. It does not constitute price reductions on resale, which is due to the fact that “ The market “presumes better than actual usual quality of items of the same type when setting the price, which does not constitute a defect.”
Recovered injuries often have to be discussed and decided upon by the courts. So BGH had to [NJW 2020, 389] Deal with the question of whether a horse that was purchased for riding purposes and has a fully healed fractured rib has a physical defect if it is suspected that there may be long-term consequences. As a result, the focus was solely on whether the horse had clinical abnormalities or at least a high probability of injury with respect to the usual type of use, as in the case of X-ray results. “Potential” suspicion alone is not sufficient to presume a physical defect in an animal that is not clinically apparent.
Even a “spine kissing discovery” cannot be a material defect in the absence of a different agreement on quality or a special contractual purpose, provided that it is not related to the symptoms of the disease [BGH NJW 2020, 2879].
Warranty rights in case of defect
Basically, according to § 437 No. 1 BGB, the buyer can demand subsequent performance in the event of defects within the scope of the purchase contract, § 439 BGB. The debtor has the right to obtain a second bid. Subsequent performance can also be visualized in the context of purchasing an animal, as alternative delivery when purchasing a piece – which usually happens when purchasing a horse – cannot be ruled out from the start. [vgl. BeckRS 2011, 5375]. Rather, it shall be made clear through the interpretation of the will of the parties involved whether supplementary performance in the form of alternative delivery is an option [Allgemein zum Stückkauf BGH NJW 2006, 2839]. For example, this is not an option if the horse has been tried several times and becomes familiar with the animal, resulting in a romantic relationship [OLG Frankfurt BeckRS 2011, 5375].
Under certain conditions, § 437 No. 2 BGB, it may be withdrawn or reduced. § 437 No. 3 BGB allows confirmation of damages. For withdrawal, the right of withdrawal is required, i.e., in principle, non-performance or poor performance by the debtor at the end of the period of supplementary performance. This makes it clear that a mere “no longer like an animal” has no right to withdraw. With regard to the contract and any warranty claims, it is especially important to ensure that the deadline is observed.
Statute of Limitations and Warranty Exclusion
If a horse has a material defect, the statute of limitations for any claims must also be observed. The statute of limitations for claims under sales law is based initially on Section 438 of the German Civil Code. According to Section 438 Paragraph 1 No. 3 BGB, claims generally become time-barred after two years. This period is not to be confused with reversal of the burden of proof after 6 months, § 477 para 1 clause 1 BGB. With regard to shortening the limitation period for “used” items, § 476 BGB should be observed, which is especially important when buying horses.
When agreeing to liability exclusions (in the case of a private purchase), it should be borne in mind that these do not apply in the case of fraudulent misrepresentation or quality assurance.
legal point of view
Buyer is strongly advised to take a pre-purchase inspection (AKU). Especially with regard to X-ray findings, a large AKU is recommended. Any results must be recorded in the contract, particularly to protect the seller. If a defect is suspected, it is advisable to consult a lawyer so that no deadlines are missed.