1. Horses and Business Samenstelling: PRESENTATIE: MR. M. ANNETTE MAK

2. Subjects I. Contract law Purchase agreements  Professional X Professional  Consumer X Consumer  Professional X Consumer II. Tort liability Liability for damages  Horse owner  Shift of liability III. Joined ownership 2

3. I.Contract law Purchase agreements  Oral or  Written  Best practice! 3

4. The major issues  Horse does not comply with the expectations Horse is lame after a few days: reason chronic thrombose. Horse rears: reason kissing spines. Horse is not nice or frightened. 4

5. Law in EU is harmonised  3 positions. Divide: 1. Professional X Professional 2. Consumer X Consumer 3. Professional X Consumer 5

6. For all positions  The horse should be compliant with the agreement 6

7. Expectations  The purchaser can expect that the horse possesses the quality's for normal use  As well the quality's for special use if included in the agreement 7

8. Expectations of the agreement Purchase of an international classified show jumping horse for EUR 100.000,- at the age of 9.  Expectations might be that the horse is fit at the delivery and can jump a reasonable time of years. 8

9. The microwave effect  A horse is in the law considered to be a microwave Not a living being. But perfect as a product But no horse is perfect A horse can have all kinds of latent conditions F.I. Kissings spines or cancer that nobody knows or should know 9

10. Exclude  Seller wants to exclude liability for these unknown defects.  But that is not always possible. 10

11. A professional  Professional salesman (pays VAT)  In name of a company F.I.  The owner of Totilas was a professional because the horse was in ownership of his company. 11

12. Professional X Professional  The same rules for Consumer X Consumer  Seller wants to exclude all liability from the conditions which where part of the horse at the moment of delivery F.I.  Tumours  Thromboses  Hoof laminitis 12

13. Excluding  Purchase agreements between professionals or between consumers can exclude liability.  This is VALID! 13

14. Professional X Consumer  Professional cannot exclude liability  The Dutch Civil Code protects consumers (same rule all over European Union) 14

15. Selling to consumers  Solution: limit the expectations in the agreement Horse might have … Horse had an injury  But you can not exclude the liability!! 15

16. Suppose not excluded or consumer contract  Horse shows problems Question: Did the problem exist at the moment of delivery? F.I.  Horse dies after a year because of cancer. Did the cancer exist at the moment of delivery?  Yes, then no compliance with the agreement. 16

17. Prof X Prof and Cons X Cons  The purchaser has to prove that the cancer or other deficiency existed at the moment of delivery (nidus). 17

18. Professional X Consumer  Six months rule: Shift of burden of prove.  Professional has to prove the deficiency was not there at the delivery. 18

19. Burden of prove  Battle about burden of prove  What does the burden of prove mean?  Beyond reasonable doubt/ up to the hilt? 19

20. No liability however if:  Purchaser should have known (nidus) of the deficiency. Regular clinical and X-ray examination  But is limited (F.I. no cancer and no thromboses)  In the event of no examination; exclude what could have been found with the regular examination (depends on circumstances) 20

21. International aspects  Law might be different (outside EU)  Choice of law (limited in case of consumer contracts)  Choice of venue  Lesson: Make sure you litigate in your home country. Unless it is not possible because of consumer rights of the respondent. 21

22. II.Tort liability  Not harmonised in EU  First rule: The owner of a horse is responsible for the damages the horse causes.  F.I. Horse injures someone or damages a car 22

23. Shift of liability  Professional users of horses, such as: Trainers Riding school, using horses of others  Although they do not own the horses, but use them professionally, they become liable.  F.I. the case of Caprice. A horse was used in a lesson and tripped. The rider got injured. In this case not the instructor of the school was liable but the owner of the riding school was, because he rented the horse. 23

24. III.Joint ownership OwnersA B Rider C 24

25. Issues:  Medical  Training  Sales decisions  Conflict solutions (including ending agreement)  Sponsoring  Competitions  Feeding and supplements  Boarding conditions 25

26. Thank you for you attention.  Are there any questions?  Follow us on facebook!  Schenkveld Advocaten Hippisch Recht 26