Author Topic: Article Regarding Legal Contracts for Breeders  (Read 4919 times)

Offline moonlitcroatia

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Article Regarding Legal Contracts for Breeders
« on: July 13, 2005, 10:47:11 pm »
This article is from a British Site.  It explains a situation in which a purchaser obtains a pup with hip dysplasia and the legal situation which ensued.

Source:  http://www.gsdhelpline.com/legal.htm


Compensation awarded Against Breeder in HD Case.
By Charles M Ross BVMS MRCVS.

I have recently ben involved in a claim for compensation which has far reaching implications for dog breeders and for the British Veterinary Association/ Kennel Club Hip Dysplasia scheme.
A purchaser, who later claimed she knew nothing whatsoever about the breed she was buying, bought an 8 week old puppy bitch from a breeder with over 20 years experience of breeding, showing and judging. The puppy was bought as a pet and at pet price. The purchaser was given the puppy's pedigree certificate and leaflets concerning feeding and exercise for the breed concerned.
The breeder said in evidence that at the time of purchase, the purchaser was told that the puppy's parents had eye test passes and had been X-rayed for hip dysplasia and had average scores for the breed, but that this was not a guarantee of how the puppy's hips would develop. The purchaser admitted in her initial written statement that the breeders daughter had confirmed that the parents had eye passes and had been x-rayed for HD. However, she later claimed that she had intended to breed from the bitch and had not been told anything about HD or its consequences.

Informed

The purchaser also claimed that the puppy had never walked correctly from the day it was bought. Nevertheless, it was presented for routine vaccinations and nothing was said at this time by the purchaser to her veterinary surgeon or by the veterinary surgeon during the routine examination which is carried out at the time of vaccination. She was examined at a later date for a skin infection and again no mention was made of difficulties in walking.
At 5 months of age, the puppy was presented to a different veterinary surgeon with 'clicking hips'. The owner was told that there was a possibility of HD which could only be confirmed by Xray and given advice on feeding and exercise. If the symptoms continued, the puppy was to be x-rayed in a few months when the skeleton was more mature. The breeder was informed by telephone and alleged that the owner said the puppy had to be rested because its paw was bleeding after walking. The owner later denied having said this.

At 7 months of age, the puppy was the presented to another veterinary surgeon. Xrays were taken and HD diagnosed. Although the breeder did not know at the time, a decision had already been made to carry out excision arthroplasty on the first hip and the puppy had been given a preliminary course of anti-inflammatory tablets. The owner phoned the breeder and told her the bad news, saying the surgery had been advised, although she did not say that it was intended to operate immediately.

At this point, the breeder did not consider herself to have a legal responsibility to the purchaser, believing that the purchaser had known about the possibility of Hd from the beginning and that she had done everything possible to breed good quality puppies. Never the less, as a gesture of good will, she immediately offered to take the puppy back and refund the purchase price in full; or, if the owner wished to keep the puppy, to pay half the cost of surgery on the hips. Her local Trading Standards office was consulted and confirmed that everything she had done was fair and reasonable.

There followed an exchange of letters in which the breeder's offer was refused as being totally inadequate and threats of legal action were made. Although the mater was now under threat of legal action if a reply was not received within 14 days, seven days after this letter was received and 3 weeks after being seen by the new veterinary surgeon, the 8 month old puppy had one hip subjected to excision arthroplasty. At no time was the breeder or her veterinary representative invited to examine the puppy before such an irreversible salvage operation had been undertaken.

Opinion

In spit of all this, the breeder confirmed in writing that her original offer stood. It was not good enough for the purchaser and the eventual result was a claim to retain the ownership of her puppy and for a refund of the entire purchase price, all veterinary fees, including those for  treatment in the future in the loss of ability to breed and personal distress due to possible future limitations on exercise and the ability to participate in a full family life.

In her defence, the breeder established her ethical credentials by producing numerous testimonials from satisfied customers and from breed societies from all over the country. This was the first complaint she had ever had. The pedigree of the puppy was produced, with the hip scores of the ancestors included where known. In a breed who's latest average score is 17, the parents were scored 16 and 18 and the entire list of known scores of ancestors from grandparents back were 0-0,1-1,1-1,2-1,3-2,3-3,3-13 and seen of the old HD passes (i.e. below a total score of 4) certificates.

Expert written evidence was presented from on of the world's foremost genetic experts on HD. He outlined the known facts about the condition and confirmed that the breeder had done everything possible to ensure that her puppies were of a high standard with respect to the disease HD. He emphasized that if the allegation about over exercising the puppy despite warnings to the contrary in the exercise leaflets were correct, then the owners may well have contributed significantly to the development of the problem. He furthermore gave hs opinion that surgery had been undertaken at too early in the case, citing extensive personal experience of success with conservative treatment in an attempt to preserve the joint for any future line of treatment. In concluding, he wrote "It must be said that HD is a developmental disease with a hereditary component. It is not possible for a breeder to predict an individuals final score. The disease can not be eliminated by breeding programmes and will crop up sporadically in the best genetic lines that have been kept under the best possible conditions of management, feeding etc. Only if the breeder were knowingly and deliberately breeding from poor stock that was known to have a high incidence of HD does a reasonable litigation case arise."

Amazement.

From reading this, it might be supported that the purchasers case had just been destroyed by her own experts opinion but the case was not over yet. I appeared for the breeder in my capacity as a veterinary surgeon with over 2 years of experience in general practice. I was the only qualified person at the hearing, I confirmed my support for the other experts opinion and did my best to explain any technical points.

It was with some amazement therefore, that I heard the judgement. No aspect of the breeder's efforts to produce sound puppies via the HD Scheme was considered relevant, nor were the factors concerning the development of genetics of the disease. It would not have mattered if the puppy had been from ancestors who were all 0-0 clear on the xray or who all had combined scores above 50. The critical factors were:
a) Did the purchasers truly know so little about the breed from which they were going to purchase a puppy and wished to breed from that they did not know about a problem that was endemic in the breed?
b) Did the breeder tell the purchaser that HD existed, in which case, as the purchaser said in evidence, she might not have purchased a puppy of this breed?
c) Does a veterinary surgeon have the right to make up his own mind about a case and to adopt a  form of treatment which might not have ben followed by other veterinary surgeons, even those who were highly qualified in the field? Following on from this, would the breeder then be liable for such fees both then and in the future.?
The verdict was that the purchaser had known nothing about the breed, that in consequence they should have been told about HD, that their evidence that they had not been told about HD was more convincing than that of the breeder, and the clinician had the right to carry out any form of treatment he wished, irrespective of other expert opinion. Compensation was awarded against the breeder, including the costs of future treatment and a sum for personal damages, and the purchaser allowed to keep the dog.

The significance of this case is that adherence to the breeding principals embodied in all the schemes to eliminate or reduce diseases with a genetic component may be of absolutely no use in a claim for compensation for a disease with any percentage of genetic composition. The lessons to be learnt are obvious if a breeder wishes to avoid what could result in potential penalties hanging over her for the lifetime of any puppy she has sold.
1) Put everything in writing. Keep a diary at the telephone and after every call note the time, the person to whom you have spoken and as much of what was said as possible. Do it immediately, not later that night. Don't think that anything might be unimportant, write it down. If a purchaser calls to see a puppy, note in the diary what was said at the time. Don't alter or delete anything, the diary might be needed in evidence, take your time and get it right first time.
2) When you are discussing the sale of a puppy, do not try and explain about disease processes yourself. You are not a professional and you might get it wrong, however well you may think you know your subject. What you say is this "Dogs of may breeds may be affected by diseases, some of which are genetic or partially genetic in origin. If you wish to buy a dog of this breed, I would advise you to consult your veterinary surgeon to discuss this breed and problems it may have before purchase. I am a breeder not a veterinary surgeon, and your veterinary surgeon is the person best qualified to advise you"

Minefield.
This puts the responsibility for advising on HD or any other disease and on the possible lines and consequences of treatment, squarely on the shoulders of the purchaser and the veterinary profession where it belongs, and not on yours. This is a minefield and you don't want to find yourself in the middle of it.
3) Have 2 copies of a written contract at the time of sale, signed by both you and the purchaser. This should include wording to the following effect:
(a) The breed, date of birth, sex, colour, name and KC registration of the puppy.
(b) This puppy is believed to be in good health, but you are strongly advised to take it to your veterinary surgeon to be given a general health check within 4 days of purchase. This check, and any tests or examination associated with it, must be at your expense.
(c) If your veterinary surgeon finds any problem which, in his opinion renders the puppy unfit for sale, I will take the puppy back and refund the purchase price in full on condition the puppy is returned within seven days of the date of purchase and is in the same state of health as it was sold. Before purchase you should consider that a a puppy is a living thing and may become a much loved member of the family in a short time, and this may affect what you wish to do if return of the puppy becomes necessary. I can not be held responsible for any distress or upset caused by the return of a puppy after drawing your attention to this possibility.
(d) You must confirm before purchase that you have consulted your veterinary surgeon about this breed and any possible diseases, genetic or otherwise, to which it is prone, and you accept that, if such a disease develops later in life after satisfactory preliminary examination by your veterinary surgeon, I cannot be held responsible.
(e) Any endorsements, e.g., progeny not eligible for registration, not eligible for export pedigree etc.

As far as evidence of good breeding is concerned, the only other way I can see for a breeder to be liable is by misrepresentat ion, a term which is open to interpretation and is therefore another minefield. For example, if a breeder happens to get a puppy with hips scoring below the breed average but who's ancestors were generally poor, it could be argued that she should have told the purchaser. It might be circumvented by providing a pedigree with all known hip scores included, but because of the changes which the HD scheme has undergone over the years, this raises many possibilities for mistake and I do not advise it. I would suggest providing a pedigree with the scores of the parents and an invitation for the purchaser to look into the scores of the ancestors in their own time at their own expense. People wishing to breed may do so, pet owners are unlikely to bother, but at least they can not come back afterwards and accuse you of misrepresentat ion.

This is an ideal opportunity for the KC to provide a vital service for its breeders. I would suggest that the KC asks its legal department, as a matter of urgency, to draw up a breeders contract which addresses the problems I have recently faced. In the meantime, I would advise breeders to get out their typewriters and get cracking if they want some peace of mind.

A final word to all breeders. This does not mean that the various schemes for genetic disease screening are valueless. They still have every bit as much relevance to the production of healthy puppies as they had before this case and are the single most important tools we have to reduce the percentage of genetic defects. Just don't rely on them as a defence.

I think dogs are the most amazing creatures; they give unconditional love.  For me they are the role model for being alive.  ~Gilda Radner

GYPSY JAZMINE

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Re: Article Regarding Legal Contracts for Breeders
« Reply #1 on: July 14, 2005, 01:39:42 am »
Very good post Moonlit!...The fact concerning HD is that a dog can't be tested ( certified I believe)  until it is 2 yrs. old...The parents being certified against HD is the best a breeder can do regarding the pups...Most legitiment breeders will give a 2 yr. health gauruntee but at that point, when you can get the pups tested for HD it is null & void...So, I guess you hope for the best if there is good results for the HD testing in the pips lineage...If the said buyer thought there were problems before the age of 2 yrs. he/she should ahev taken action sooner...That is if Iunderstood your whole post. :-\ :)

Offline RedyreRottweilers

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Re: Article Regarding Legal Contracts for Breeders
« Reply #2 on: July 14, 2005, 07:05:19 am »
Canine hip dysplasia has a heredity that is not well understood. It involved a multitude of genetic and environmental factors that affect it's severity and expression.

It is clear that many dogs that are exrayed normal are not genetically normal and can produce dysplastic offspring.

Filming to determine normal hip conformation and development is currently our only tool as breeders.

There is no possible way to guarantee that ANY puppy will have normal hips or elbows. The only prevention is to carefully screen breeding stock and use ONLY normal animals.

I do not in any way ever insinuate that any puppy I produce is guaranteed not to have HD. I can't. It's impossible. What I do is sell all puppies, including show prospects, for a reasonable pet price. If a problem arises with HD, it is just the luck (or unluck) of the draw. I do not feel I am obligated to refund any of the purchase price as I do ALL my homework before I make ANY breeding. I will offer replacement if people wish, but since I do ALL health screening, and only use dogs normal for GENERATIONS in my breeding program, I feel I am in no way responsible if the genetic cards happen to fall the wrong way.

This is a really dicey issue for many breeders. It is heartbreaking when you have a puppy or puppies in a litter who have health issues. I have been there and done that. I want all my puppy people to be delighted with their new family members, but there is just simply no way to ever guarantee that a puppy will not have health issues, even when you are doing the very best you can as a breeder.
Redyre Rottweilers
redyre@carolina.rr.com
No part of this message may be forwarded without my permission.

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Re: Article Regarding Legal Contracts for Breeders
« Reply #3 on: July 14, 2005, 09:24:00 am »
Ty for an informative post Red!...It helps to cut through the confusion regarding hd for sure! :)