BEFORE YOU BUY OR SELL

Problems and issues abound concerning the business and sport of owning, breeding and showing pure bred dogs. Many of these problems relate to the law of contracts and are unique in their application because of the complex nature of the agreements in the buying and selling of live animals. In the hope of avoiding some of these distressing encounters this monograph is dedicated. Its purpose is not to draw contracts for you but to suggest areas which should be considered before drafting any agreement.

Table of Contents

Do you need a Contract?
Disputes
Terms of Purchase
Registration
Spay/Neuter
Guarantees by Seller
Limited Registration
Show Dogs

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Do you need a Contract?

• The DPCA code of Ethics sec. 3 states "All services and sales agreements shall be mutually agreed upon, stated in writing and signed by all parties involved, including all adjustments, replacement conditions, etc. Support and conduct only ethical trade practices.
  
• The sale of a puppy is unlike any other purchase and sale agreement. Many conditions, promises and restrictions can be built into an agreement, several of which have no practical or legal way of being enforced. Therefore, the bottom line is the psychological and coercive effect of entering into a written agreement.
  
• Living up to the agreement often depends solely the good faith and conscience of the parties. Unfortunately, these are often lacking. Many a friendship or relationship or trust becomes destroyed because of a good faith disagreement as to what conditions and promises were actually made at the time of the transfer of the puppy.
  
• If for no other reason than for parties of good faith to have a written memorandum of their agreement, a contract of some form is essential. The details of the contract, the consequences of the breach depends on how far you are willing to go to enforce these promises.
  
• Should a dispute arise and you seek reparation, ask yourself some practical questions beforehand such as: Are you willing to go to court? Are you prepared to incur the costs? Are you willing to risk the loss of a sale of a puppy to a good home by insisting upon a penalty clause for breach of the promises of the agreement?

Identification of the Responsible Parties.

• Clearly name all of the Sellers and all of the Buyers and their addresses and phone numbers. Identify the animal to be sold by the AKC
  
• Registration or Litter registration number, the sex, color, whelping date and the names of the sire and dam.

The Purchase Price of the Dog must be set Forth.

• State when payment is due and whether it will be in full or upon payment terms. It is recommended that if the price is to be paid in payments, specific dates of future payments should be included. If as a part of the agreement the animal is to be shipped, the shipping costs and responsibility for payment should be clear. Here, some breeders include a penalty in the event of a missed payment. Forfeiture of the puppy and loss of the money already paid is the harshest penalty.
  
• Consider whether the dog will be delivered before full payment. Many problems can be avoided if possession stays with the breeder until the full price is paid.
  
• Any Future considerations to he paid by the buyer such as a puppy back or stud service must be specified.
  
• Be sure to include who pays for costs involved in producing the puppy or transportation costs involved in that mating or stud service. At what age will the puppy be picked or delivered. Make it clear that no pups are to be transferred by the buyer before the pick is made.
  
• When will the transfer of registration of the puppy occur?
  
• It may be a good idea not to deliver the signed blue slip or registration certificate immediately. If your contract contains conditions such as veterinarian examination or buyer's right of return within a brief period of time for health or other reasons, it is advisable to hold the transfer until the period for return of the puppy has expired or is waived by the buyer.
  
• This will avoid the need for an AKC retransfer in the event of a return. Of course, there will be no transfer of registration until full purchase price is paid.

Guarantee by Seller.

• This is a controversial subject and varies greatly in its application. Clauses vary from absolutely no guarantee of any kind after delivery to very specific short or long term guarantees against specific conditions such as hip dysplasia, over or under bite, missin g teeth, testicles, thyroid and vWD.
  
• Many breeders merely give a general statement representing that the animal is healthy, free from deformity and of sound temperament and allow the buyer 30 days or less to have a veterinary examination with a right of return for any condition relating to the animals health.
  
• If you are going to guarantee against hip dysplasia, it's important to specify at what age the test will be done and how and by whom it will be done and what the right of the Buyer will be in the event that hip dysplasia occurs. Return of funds? Replacement of puppy? Who will be responsible for veterinary fees in the event of an attempt at surgical correction?
  
• In the event that freedom from a certain disease will not be warranted, the seller should specify "No warranty is made with respect to the following disease."
  
• In the event at certain warranted conditions cannot be ascertained within 30 days (or less) of the date of sale, the rights of the parties must be specified. For example, what happens in the event of missing teeth (how many?) or a missing testicle? Will the buyer be entitled to return the dog for full refund or no refund but a replacement puppy?
  
• If the buyer decides to retain the dog, will seller give a partial refund, e.g. the difference in price of show dog and a pet.
  
• Some breeders insist on the right of recision of the agreement in case the buyer is found not to be appropriate for the animal.
  
• The time period for revoking the contract must be specified and should probably not exceed six months. The right of the seller must be stated in detail and the buyer made responsible for any legal fees necessary return of the dog. This can be made as broad or as narrow a right as the negotiation between the parties will produce. For example, if the buyers represent the animal will be housed in a certain way or secured in a fenced area, and should the seller discover that the animal is being permitted to run loose, this might be justifiable cause for recision, and return of the puppy.
  
• Conditions relating to care of the animal by the buyer, shots, heartworm, and cleanliness should be outlined here.

Right of First Refusal.

• The breeder has a proprietary interest in its kennel name and its reputation can be damaged if an animal bred or sold by it falls into inappropriate hands.
  
• The seller must insist on a right of first refusal to recover the puppy in the event of a contemplated sale or transfer (even as a gift) by the buyer to another. This clause is often accompanied by a monetary penalty. The amount should be high enough to inhibit the buyer from breaching this promise.

Spay/Neuter

• If you know it's a pet or you have a compelling reason to wish to be sure the animal will not be bred, spay/neuter is the way to go. Money penalty is not enough here.
  
• Insist that the animal be neutered by a certain date and that breeder will be supplied a certification by a veterinarian that the operation has been performed. Until the certification has been received, the AKC/ILP registration transfer will be withheld.

Limited Registration.

• It is recommended that limited registration be used to protect against loss of a future show prospect.
  
• The conversion of limited to full registration should be at the sole discretion of the breeder and should not be completed unless an amended or new contract is entered into ensuring that the animal will, in fact, be shown for a reasonable period of time in an attempt to secure a championship.
  
• The breeder should consider demanding a co-ownership at this point with additional rights to fees or pups to compensate for the difference in status.

General Conditions.

• To avoid a claim that an oral promise was made include language that this agreement constitutes the entire understanding between the parties. There are no binding amendments unless in writing.

Dispute Settlement.

• Want to avoid courts? Agree to have disputes settled by arbitration under the American Arbitration Association or by arbitrators agreed on by the parties. You might give authority for the costs to be paid by the loser.
  
• If you are going to resort to courts, specify the state whose Iaws will apply. If you live in Pennsylvania and sell a pup in Texas, you probably will want to insist on Pennsylvania law.

General Releases of Breeder.

• The breeder assumes no responsibility and the buyer releases the breeder from any claims for future veterinary or other bills pertaining to the dog after the initial return period.

Show Dogs.

• This is the toughest of all. We cannot deal with the innumerable variations of this part of the agreement.
  
• State that this puppy is being sold as a show dog and that showing is a material and indispensable condition of this sale.
  
• You may include the breeders right to selection of a handler or approval of a change of handlers.
  
• You may specify who will choose the shows and how many shows. Must the buyer show to age 3 or a championship, whichever comes first?
  
• The number of shows may be specified in terms of a "reasonable effort to attain a championship" or a minimum number of shows (i.e. 40 shows after reaching 18 months).
  
• Do you want to insist on a co-ownership? What are your financial responsibilities as a co-owner? Don't leave any of these unspecified because this is an area ripe for dispute.

We have tried to point out areas to be covered. We know there are many more you can think of or have encountered in your own experience. Be specific, say what you mean and mean what you say.

A simple well written contract is necessary to protect yourself, your kennel, your reputation and most importantly your dog

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