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Previous Figure Next Figure. Email or Customer ID. Forgot password? Old Password. New Password. Password Changed Successfully Your password has been changed. There are several legal restrictions to oral contracts the main one being the Statute of Frauds, which, among other things, limits oral contracts to the sale of goods e.
When a person buys a dog from a merchant breeder or pet dealer, that seller is subject to the provisions under the UCC regardless of whether the parties had an explicit written contract. Again, under the UCC, the term merchant has a particular definition. To gain protection under the UCC in a pet sale, a buyer must purchase the dog from a merchant. A merchant could be a supplier of products, shopkeeper, or dealer in specialized goods. In terms of the sale of animals, merchants would obviously be retail pet stores, professional breeders, and entrepreneurs who routinely sell animals.
As most in the legal field are fond of saying, the answer will always be a factual question determined on a case by case basis. The New York case of Nuijens v. Novy , Misc. Plaintiff took the dog to a veterinarian who found that the dog suffered from what was initially thought to be a minor urinary tract infection it later became a more serious health issue. At trial, plaintiff argued that Section of the General Business Law expanded the contractual time frame to fourteen days to return an unfit dog to a pet dealer. Pet dealer has a specific meaning under the state code.
The court found that defendant, who sold only one litter of puppies, did not qualify as a pet dealer to fall under the ambit of the statute. In addition, the court noted that plaintiff elected to forgo the express warranty by retaining the dog.
While plaintiff failed to meet the requirements under the New York provisions, the court considered the application of the UCC's implied warranty of merchantability. While Nuijens is exclusively a New York holding and has limited value as a small claims case, the reasoning is sound.
The Companion Contract
Few courts will be inclined to hold a person who sells one litter of puppies or kittens out of his or her home a merchant. This is not to say buyers cannot attempt to recover under traditional contract law principles. But, out of fairness, a court will not hold a seller of an unexpected litter of kittens to be a merchant who gives an implied warranty of merchantability on his or her goods. Implied warranties are just that — warranties based on the factual situation of the transaction.
No other language is necessary to bring this warranty into being because it exists at the outset of the transaction. The goods must be fit for the ordinary purposes for which the goods are used. UCC This meaning is derived from the usage of the goods in that particular trade. The warranty arises independently of the sales contract and is imposed by law. Moreover, such warranty may arise not only in connection with a sale, but also in connection with a contract to sell; and it may arise not only when the purchase is made by the buyer for his own use, but also when the purchase is for resale.
Thus, an individual who buys puppies to train as hunting dogs and later sell to others is protected under the UCC. Traditional examples of goods that fail to meet this implied warranty of merchantability could include shoes whose heels break off under normal use, soft drinks containing particles of glass, or shotgun shells that prematurely explode. For example, a buyer who purchases a dog for breeding purchases differs from one who purchases a dog for companionship alone. The factual situation determines the extent of the warranty. Clearly, any sale of a companion animal would carry with it an implied warranty that the animal is healthy and has no apparent deformity.
A dog for sale at a pet shop with an obvious debilitating congenital disease would not pass without exception in the trade nor would one suffering from an extensive parasitic infection.
This is true whether the buyer seeks a breeding animal or a companion. In Brown v. Faircloth , 66 So. While the case was premised on the express warranty that the dog was a bird dog of a high-caliber, that warranty also carried with it the implied warranty that the dog was physically healthy. Since the dog was found to have a serious case of heartworms at the time of sale which hindered his ability to perform field dog trials , the seller breached both the express and implied warranties of sale.
Indeed, the court observed:. But, as has been heretofore noted, the case was not bottomed upon that theory, but upon the theory that the defendant expressly warranted the dog to be a 'three-hour dog,' and that this express warranty necessarily carried with it and included within its scope the implied warranties that the animal was sound physically, was finished in his training, and was capable of running three-hour races in major field trials with such speed and finish as could be reasonably expected to win; that such an animal had to demonstrate the highest attributes of speed, range, nose, style, bird-finding proclivities, training, and stamina.
An express warranty understood and agreed to by the buyer may cancel any implied warranty inherent in the contract. Suffice to say that a ll contracts for the sale of companion animals by merchants carry with them implied warranties of merchantability if not expressly altered. Some of those contracts may further warrant the animal for a specific quality or purpose. The factual situation and the contract itself will determine the extent of the warranties. As the maxim goes, one must first look to the contract.
Even if a contract has not modified the preexisting implied warranty, a buyer must prove that the goods in question are unfit. Implied warranties can also arise from the course of dealing or usage of trade. Course of dealing simply means that a sequence of previous acts or conduct between the parties involved has established a common basis of understanding for a particular transaction. UCC 1. Such a situation can arise with the obligation to provide pedigree papers to evidence conformity of the animal to the contract in the case of a pedigreed dog or blooded bull.
UCC Sec. With regard to companion animals, the most obvious implied warranty a merchant provides is that the animal is healthy at the time of purchase. However, as noted above, the sale of purported pedigreed pets may also imply proof of pedigree by papers but note that proof of pedigree does not itself warranty fitness of the animal. In fact, the American Kennel Club expressly states this on its website.
Companion animals may also carry with them an implied warranty for specific qualities like hunting prowess or breeding capabilities. In fact, most early cases dealing with companion animal warranties limited the application to hunting dogs or other commercially viable animals. For example, a buyer of a dog brought an action against the seller to rescind the contract of sale on ground that the dog, purchased by buyer to be a stud, was sterile. Newberry , Okla.
The Oklahoma Supreme Court, affirmed the judgment for rescission of the contract, but modified it to disallow damages. In essence, the court held that the buyer could only recover under one contract theory:. It is undisputed that the dog proved to be sterile and was therefore of no value to the purchaser for such purpose. The dog being of a defective quality, plaintiff was entitled to rescind the contract of sale after his election to so do.
Thus, invoking the rule that where a sale of personal property is rescinded for defective quality, the purchaser can recover what he paid under the contract and expenses necessarily incident thereto, but cannot, in addition, recover damages for the breach of the implied warranty of quality. Similarly, a New York court held that a poodle with one undescended testicle would not pass without objection in the trade. Dempsey v. Rosenthal , Misc. Faircloth gave buyer an express warranty of merchantability, the breach by seller still allowed buyer to rescind the contract.
The previous cases focused more or less on the commercial aspect of the companion animals. A recent New York case suggests that a dog may be unmerchantable if she fails to meet her breed size standard.
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In a highly entertaining small claims case from New York, a claimant sought to recover the purchase price of her dog, Little Miss Muffet. Testimony established that this weight difference resulted not in diet or other acquired conditions, but from genetic make-up. O'Rourke v. American Kennels , 7 Misc. City Civ. Slip Op. The court's decision carefully dissected the implied warrant from the contract's express warranty. The court found that the condition developed after the warranty protections expired in the purchase agreement.
Further, the warranty expressly excluded reimbursement for veterinary fees and instead offered a replacement remedy clever on the part of the kennel, as most owners would have bonded with said animal prior to the expiration of the warranties. One case does suggest that recovery for breach of an implied warranty can be based on the more ordinary circumstance of an unhealthy dog. In Saxton v. Pets Warehouse , Misc.
The court specifically found that the buyer was not limited to the remedies provided by statute governing sales of animals. Part and parcel of this decision was the fact that the dog came within definition of "goods" as set forth in the UCC and seller was a "merchant" under the UCC. Thus, the court held that the plaintiff failed to prove that any implied warranty of merchantability was breached. Bormaster v. Henderson, S. Additionally, many dogs from pet stores suffer not from physical infirmity but rather from behavioral disorder. One could well imagine the difficulty in attaching an implied warranty to the behavior of a dog, a trait that varies widely not only from dog to dog, but breed to breed.
Adam J. To date, no case has apparently taken on that novel legal issue. Such an action would involve serious issues of proof as well as a difficulty in applying an appropriate legal remedy. The buyer of a non-merchantable dog may receive little consolation in the remedies available to him or her.
This is the often the crux of these type of cases; what is a just reward where the buyer has already bonded with his or her new animal companion? Should he or she be forced to part with a new member of the family? Significantly, how can a deviation from traditional contract remedies e. This is often impracticable or unthinkable to many buyers.
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However, as noted above i n O'Rourke v. New York in addition to several other states has also enacted additional statutory protections for the purchasers of companion animals. See Section III , infra. New York law explicitly provides that the remedies included in the pertinent section of the consumer protection law do not limit or modify existing contract rights of the parties.
The court held that plaintiffs were entitled to recover damages pursuant to section UCC under the theory that defendant breached the express warranty that the animal was healthy at the time of sale or under a theory of breach of the implied warranty of merchantability. The UCC can often be the starting and ending basis for many contractual issues beyond implied warranty of merchantability. One author has observed that products liability may provide yet an additional avenue for recovery in pet sales. On occasion, courts have permitted a consumer who purchased a diseased puppy to obtain compensation under such law.
In Worrell v. Sachs , the Superior Court of Connecticut decided that a pet fell within the definition of a product under the pertinent state law and that the plaintiff could therefore sue if it turned out that their animal was diseased or defective. In a similar vein, a New York Court reasoned that, "[t]here is no reason why The risk presented to human well-being is as great and probably greater than that created by a defectively manufactured product. Thus, while Worrell did allow for recovery, most consumers would be wary to premise liability solely on such an action.
See , Worrell v. Sachs, 41 Conn. But also see , Beyer v. Aquarium Supply Co. In the right situation and with the right court, a plaintiff may be able to pursue a products liability action for a "defective pet. While courts interpreting the UCC have made many strides in terms of companion animal cases, the UCC itself provides little guidance to these types of cases. Many states, in attempt to fill that gap, have enacted codes that expressly govern the sale of pets by merchants. These laws provide both uniformity and a more equal bargaining position for both parties.
It should be noted that contract law and the UCC provisions provide the legal basis for the sales of all goods. In other words, any additional laws or regulations by the state or federal governments will not usurp any of the relevant state UCC provisions. However, in recognition that the sale of pets involves not mere inanimate goods, states have enacted codes to underscore the rights and responsibilities of buyers and sellers.
State animal dealer laws regulate not only day to day operations, but provide remedy to the consumer if it can be shown that the merchant sold a "defective" dog. The hope is that by holding the dealer responsible for the quality of their product and compensating the consumer where merchandise is "faulty," the distributor will be forced to pay greater attention to the health of the puppy. Some states have gone so far as to articulate this noble purpose in their pet sale laws. It is the purpose of this chapter to require certain guarantees from retail pet stores to the purchasers of dogs and cats which are consistent with their unique status as companions rather than commodities.
A further purpose is to provide a means by which it can be ensured that the treatment, care, and disposition of those animals is humane and that the treatment, care, and disposition are consistent with providing to the retail consumer animals which are physically and temperamentally sound, healthy, and fit as companions. New York expresses a similar purpose in its section concerning pet sales:.
It is hereby determined and declared that supervision by the state of the sale of dogs or cats by pet dealers is within the public interest and for the purpose of safeguarding the public and insuring the humane treatment of such animals by guaranteeing the good health of such dogs or cats in the course of such transactions, or providing other alternatives to the consumer. Under traditional state police powers, state may enact laws that protect the health, safety, and welfare of its citizenry. These laws do not serve to usurp traditional remedies under contract laws or the UCC, but rather add an extra layer of protection to the public.
Such is the case with the relatively new category of laws that protect consumers in retail pet sales. Virginia specifically notes this in its section:. The remedies provided for pursuant to this article are cumulative and not exclusive and shall be in addition to any other remedy provided for by law.
Currently, it appears that seventeen states have enacted laws aimed at providing specific rights and remedies to buyers of pets. As such, the laws expand the remedies available to buyers, allowing the buyer to keep the pet with whom he or she may have bonded and instead recover veterinary expenses. Note that these laws do not cover all animals that could serve as companions for humans. See , List of State Statutes. The most common aspect of these laws is that the rights and responsibilities of both the buyer and the seller must be disclosed to the buyer prior to sale.
For example, in Maine, the law states that:. The notice must be signed by the purchaser, acknowledging that the purchaser has reviewed and understood the written notice. In addition, all medical information required to be disclosed pursuant to this section must be orally disclosed to the purchaser by the dealer prior to purchase. Arizona disclosure law certifies that a veterinarian has examined the animal for sale:. The ostensible aim of these disclosure laws to ensure that each party, both merchant and buyer, understands his or her rights and responsibilities. A merchant who fails to provide the required documentation may also face civil penalties or license revocation by the state.
At the same time, a buyer cannot unscrupulously bring back a dog who since acquired a disease or injury months after the purchase to seek a refund. While disclosure laws serve a laudable goal in by attempting to place each party in an equal bargaining position, states also have recognized the need to prevent misrepresentation by sellers of pets.
Indeed, these laws often carry the most bite in terms of consumer protection laws. Under the various states laws that prohibit the sale of diseased pets, one element appears to be shared; that of scienter.
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Essentially, it is the level of knowledge one carries with him or her when he or she misrepresents some material facts or offends a particular law. Virginia law provides a clear example of the level of knowledge:. No person shall misrepresent the physical condition of any animal at the animal's sale, trade, delivery, or other method of transfer. For the purpose of this section, misrepresentation shall include selling, trading, delivering or otherwise transferring an animal to another person with the knowledge that the animal has an infection, communicable disease, parasitic infestation, abnormality or other physical defect that is not made known to the person receiving the animal.
However, sale of an agricultural animal that has external or internal parasites that are not made known to the person receiving the animal shall not be a violation of this section unless the animal is clinically ill or debilitated due to such parasites at the time of sale, trade, delivery or transfer of the animal. Violation of this section shall be punishable as a Class 3 misdemeanor.
As seen from the Virginia law, misrepresentation can constitute a criminal act in addition to a contractual violation. A buyer is then entitled to rescind the contract or seek other damages under these laws. However, a buyer cannot sit back on his or her laurels and hope to receive compensation; he or she has a limited time frame during which he or she must act. One of the shared elements among the state laws is the existence of a finite time frame under which a buyer may return an animal or receive other compensation.
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The time frame varies from state to state and is dependent upon the condition for which the animal is being returned. In general, the time frame to return a sick or diseased animal is seven to fifteen days. VT ST T. Virginia and Arkansas expand this time frame to ten days from receipt of the animal. NY Gen. Some states, however, recognize the need to allow for return of animals with genetic or congential conditions.