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Documenting Your Dog Deals Author: Rick A. Witte, Esq.
The following is a brief summary of some important factors to consider as you prepare to sell, purchase, lease, co-own or breed dogs. This outline is not exhaustive, but rather is intended to highlight certain items for your consideration as you contemplate your dog transaction. Remember, every situation is different and may require special considerations not discussed herein.
I.
General considerations
A. Remember, it is a business transaction/investment
1. Openly discuss price and terms
2. Always reduce your verbal agreement to
written form
B.
Why a written contract/agreement?
1. Trust is not enough
a. "You said you would guarantee hips..."
b. "Yeah, what's the problem, the dog has
hips..."
2. Memories fade
a. "You promised me second pick!"
b. " Hmm, that's not what I remember..."
3. Statute of Frauds
a. Contract must be in writing and be signed
to be enforceable
b. Applies to contracts over $500 and contracts
not able to be performed completely within 1 year
C.
Who drafts the contract?
1. Usually the Seller/Breeder drafts
2. Remember, if a contract is vague or ambiguous,
the law will construe the contract against the drafter (because the drafter
is presumed to have the greater knowledge)
II.
Drafting the contract
A. Make a list of important terms that should
be included in the contract; see Attachment A for a sample checklist of
such terms
B. Consider the specific language to be
used in the contract - be careful to clearly define terms like "pet quality,"
"show quality," etc. that might be vague or susceptible to differing views
of what the term means; you may know what a term means but a novice may
not and even veteran dog people may disagree on the meanings of some terms
C. Consider guarantees/warranties to be
included in the contract
D. Try to address possible contingencies
that may occur and detail the responsibilities of the parties if those
events occur (e.g., what happens if a puppy is dysplastic?)
E. You don't have to reinvent the wheel,
you can work from a good form contract and modify for the particulars
of a specific transaction
1. If you use a form contract, fill in all
blanks and if a section is not applicable, mark it as such
2. If you interlineate or hand mark changes
to a contract, both parties should initial the change
3. It is okay to add additional provisions
to a form contract
a. This can be done by adding riders or
an addendum at the end of a contract or on a separate page attached to
the contract so long as the body of the contract is clearly marked to
show inclusion of the rider or addendum
b. Such provisions can be added to tailor
your contract for special circumstances
III. Example Show Quality Sales Contract (see Attachment B)
IV. Example Co-Ownership Agreement (see Attachment C)
V. Example Stud Agreement (see Attachment D)
VI.
Enforcing the Contract
A. If a dispute arises, determine exactly
what the problem is (i.e., communicate with the other party)
B. Carefully read the contract provisions
that apply to the situation, they may address your problem
C. Before instituting legal action, consider
if there is an alternative method of resolving the dispute (arbitration,
mediation, etc.)
D. Litigation?
1. Small claims court?
a. Available when the amount of damages
sought is small
b. Reasonable filing fee
c. No discovery
d. Both parties must appear
2. Is it worth it?
a. Money awards in dog cases are low (dog
is generally viewed as property and damages generally based on some version
of replacement cost)
b. Can be time consuming and emotionally
draining
c. Fees may exceed damage award
d. How important is the issue (principle)?
e. May be necessary to hire an attorney
ATTACHMENT A
SALES CONTRACT
CHECKLIST
I.
Define and adequately describe the parties
A. Names (if kennel use "dba" distinction)
B. Addresses
C. Other appropriate identification
II.
Define terms
A. Any general terms ("show quality," "pet
quality," etc. should be specifically defined)
B. Define subject matter of the agreement
III.
Describe the dog/bitch
A. AKC name
B. Sire & dam
C. Date of birth
D. Color and markings
E. Litter registration number
IV.
Price and delivery
A. Medium of payment
B. Time of payment
C. Other compensation (e.g, stud service,
puppy back, etc.)
D. Buyer's right of examination (generally
48-72 hour period)
E. Return policy
F. Delivery and transfer of AKC registration
papers
G. Time and place for delivery
H. Who pays for delivery
V.
Other obligations or terms
A. Obedience training
B. Socialization of puppy
C. Regular veterinarian check-ups and care
D. Food and supplementation
E. No bite work (e.g, Schutzunde, etc.)
F. Obligation to show in confirmation
G.
Obligation to x-ray
H. Breeding restrictions
I. Dog's living facilities
J. Restrictions on resale (right of first
refusal)
VI.
Warranties/Guarantees
A. Health guarantee
1. Hip dysplasia
2. PRA
3. Thyroid
4. Other health problems
B. "Show Quality" guarantee
1. No disqualifying faults (Akitas)
a. Drop or broken ears
b. Sickle or uncurled tail
c. Undescended testicles in dog
d. Under size (23" bitch and 25" dog)
e. Noticeably undershot/overshot bite
f. Butterfly nose or total lack of pigmentation
2. AKC points guarantee?
3. Championship guarantee?
C. Replacement/refund provisions
1. Spay/neuter
2. Return and replace
3. Time period for replacement
4. Money back?
5. Refund difference between "show" and
"companion" price?
D. Seller/Breeder assistance to buyer
1. Handling?
2. Feeding, grooming, training assistance?
VII.
Litigation
A. Choice of law to apply
B. Alternative dispute resolution
VIII.
Integration clause and severability
A. Add clause providing that contract contains
entire agreement between the parties (i.e., no side agreements)
B. Severability clause provides that if
any provision of the contract is found void or unenforceable, the other
provisions of the contract shall remain valid and enforceable
IX. Date and signatures
ATTACHMENT B
SHOW QUALITY SALES CONTRACT
This agreement,
made this ___ day of ____________________, ____, is between ______________________________
("Seller") and
("Buyer"). Seller and Buyer are collectively referred to herein
as the "Parties."
VII. DESCRIPTION OF DOG BEING SOLD
Buyer agrees to
purchase from Seller a Show Quality Dog (herein referred to as the "Dog")
of the following description:
Breed:
Birth Date:
Registration Number:
Color & Markings:
Sex:
Name:
Sire: Registration
No.
Dam:
Registration No.
VIII. PURCHASE
PRICE
Purchase price of the Dog will be ___________, less the deposit of ________.
The balance is due on or before receipt of the Dog.
Additional Terms: Buyer also agrees that as part of the purchase
price of the Dog, Seller is entitled to the following:
IX. GENERAL
TERMS
A. Seller certifies that the Dog is in good
health, is appropriately vaccinated, and is free of internal parasites.
Buyer may return the Dog for a full refund of the purchase price within
72 hours of delivery of the Dog. Within this time period at Buyer's expense,
Buyer should have the Dog examined by a veterinarian.
B. American Kennel Club (AKC) registration papers shall be transferred to Buyer within 30 days of delivery of the Dog. The Dog shall have a Full Registration.
C. Buyer agrees as follows:
1. Buyer shall provide complete veterinary care for the Dog, including regular immunizations and health checkups by a licensed veterinarian, at the Buyer's expense.
2. Buyer agrees to maintain the Dog on a monthly or daily heartworm preventative throughout the Dog's life.
3. Buyer shall insure that the Dog is fed premium quality dog food.
4. Buyer shall keep the Dog as a house Dog with a properly fenced yard (4 feet or higher) or in a kennel run with proper housing. Buyer agrees that at no time will the Dog be chained or allowed to run free outside a confined area.
5. Buyer shall attend at least one beginner's obedience class of at least six weeks duration. Buyer will also socialize the Dog among people and other animals.
6. Buyer shall notify Seller immediately for the first option to repurchase, if the Buyer considers selling, giving away, or co-owing the Dog with any other person(s). Seller shall have the option to repurchase the Dog at the then fair-market value of the Dog. Fair market value shall be determined by a third, mutually acceptable party. If Seller does not exercise the buyback option, Buyer must inform Seller of the name and address of the new owner.
7. Buyer shall make a good faith effort to exhibit the Dog at Dog Shows. If Buyer makes arrangements for a handler other than Seller to handle the Dog, Buyer must obtain approval of such handler from Seller before engaging his/her services. Buyer is responsible for all show expenses (including handler fees).
8. After the Dog is 2 years old, but before he is 3, Buyer shall have the following checks done by a qualified veterinarian: hip and elbow x-rays, thyroid function tests and ophthalmic examination.
9. (a) No breeding of the Dog shall be done until the Dog has obtained certification by the Orthopedic Foundation for Animals (hereinafter, "OFA") and the Canine Eye Registration Foundation (hereinafter, "CERF"), nor shall any partner not so certified be used for breeding. All breeding partners shall be similarly certified and shall be AKC registered Akitas.
(b) Failure to meet the conditions set out above may result in return of the Dog to Seller without any compensation to Buyer. Such return shall be at the option of the Seller.
10. Buyer shall keep Seller informed about the Dog's progress in Shows, Trials, and general health.
11. Additional Terms and Conditions:
12. Buyer agrees to pay all of Seller's court costs, legal fees (including reasonable attorney's fees) incurred by Seller while enforcing this Sales Contract.
D. Seller agrees as follows:
1. Seller shall provide Buyer with any advice or assistance pertinent to care, feeding, grooming, training, etc., upon request from Buyer.
2. [Seller will handle the Dog at Dog Shows and will charge no fees for doing so until the Dog is awarded a championship. Thereafter, Seller will continue to handle the Dog in the Best of Breed class; however, Buyer will be responsible for a reasonable per-show handling fee to be determined at such time. In all cases, Buyer shall pay the cost of entries and transportation.]
3. Upon receipt of a copy of the Dog's graduation certificate from a beginner's obedience class, Seller will rebate $50.00 of the Purchase Price to Buyer.
4. Additional Terms and Conditions:
X. GUARANTEES
A. Seller guarantees that the Dog is of show quality. Show quality means that at maturity, the Dog is free of disqualifying faults as specified by the breed standard and, further, that the Dog has the potential to obtain points towards and/or attain the award of AKC Champion of Record. Maturity is the period from 6 months of age to 2 years of age or until the Dog becomes a Champion of Record, whichever comes first.
B. Seller additionally guarantees the following:
1. Between the ages of 2 and 3 years, the Dog will be certified fee of hip dysplasia by the OFA and free of eye disease by a veterinary ophthalmologist and so registered by CERF.
2. The Dog will be free of genetic disease which would preclude its living an otherwise normal and healthy life.
3. If Buyer should no longer be able to keep or sell the Dog, Buyer may return the Dog and transfer its registration papers to Seller. In such circumstances, Buyer is entitled to no recompense and disposition of the Dog is entirely up to Seller.
C. Should action become necessary on the part of Seller under the guarantee, Buyer shall have the following options:
1. Sterilize the Dog. Buyer may keep it or place it in a suitable home. Upon proof of sterilization and/or placement, Seller will replace it with a show-quality replacement puppy selected by Seller from Seller's next available litter.
2. Return the Dog and transfer the registration to Seller. Disposition of the Dog is entirely up to the Seller. Seller will replace the Dog with a show-quality replacement puppy selected by Seller from Seller's next available litter.
3. Sterilize the Dog and keep it. Upon proof of sterilization, Seller will refund to Buyer the difference between the actual purchase price of the Dog and the purchase price of a pet puppy from the same litter.
Seller reserves the right to have a second veterinarian of their choice evaluate the Dog's condition before honoring guarantee. Where a dispute arises over quality, an AKC-approved judge of Akitas mutually satisfactory to both parties shall be consulted. Seller and Buyer agree to abide by such judge's decision.
XI. CONTRACT AMENDMENT
Any changes or additional terms to this Sales Contract must be made in the form of an Addendum and signed by all Parties.
XII. SEVERABILITY
If any provision of this Sales Contract is or becomes void or unenforceable
by force or operation of law, the other provisions shall remain valid
and enforceable.
XIII. INTEGRATION
CLAUSE
The entire Sales Contract between the parties is contained herein.
XIV. LAW
TO APPLY
Both Parties agree that the law of the State of _____ shall apply to this
Sales Contract and that this Sales Contract shall be enforceable in _____
County, _____.
The undersigned have read and understood this Sales Contract and agree to the terms and conditions set forth herein.
| Seller: Name: |
Buyer: Name: |
ATTACHMENT C
CO-OWNERSHIP ADDENDUM
TO SALES CONTRACT
The purchase price of the dog/bitch will be $____________, payable as follows:
TOTAL PRICE
a. $____________________ payable before
or at the time of delivery;
b. ________ and ________ pick puppies from
the bitch's first litter providing that there are ________ live puppies.
Should a litter of fewer than ________ puppies result from the first breeding,
Seller may, at his/her sole discretion, delay one or both picks until
a later litter of Seller's choice.
Until Seller receives two (2) puppies, the bitch will be co-owned by the Seller and the Buyer. This co-ownership by the Seller is solely for the purpose of establishing a security interest in the bitch and does not obligate the Seller for any expenses or liabilities incurred on behalf of the bitch. In addition, Seller is not responsible for the action or non-action of the Buyer in housing, training and/or controlling the bitch at home or in public.
During the time that the bitch is co-owned, neither party shall have the right to sell or otherwise encumber their interest without the express written consent of the other owner. The co-ownership shall terminate upon receipt of _____ puppies or at the time the bitch attains the age of six (6) years, whichever is sooner.
The selection of a stud dog to be bred to the bitch shall be by mutual agreement between the Buyer and the Seller. However, Buyer shall be responsible for the stud fee and all expenses attributable to the litter up to the point Seller receives the two puppies and their signed registration certificates or applications.
Seller will select his puppies no later than at __________ weeks of age. Selection will be in person, or by videotape should distance prevent personal selection. Buyer will be responsible for any shipping costs necessary to delivery the puppies to the Seller.
Seller: Buyer:
Name:
Name:
Address:
Address:
ATTACHMENT D
________ AKITAS ? ____________ ? ________, _______ _______ ____________________ (___) ___-____
CONTRACT FOR STUD
SERVICE
The undersigned parties have read and agree to the following terms and conditions for stud service. The following stud dog will be bred to the following bitch:
Stud Dog
Bitch
Call Name
Registered Name
Registered Number
Color/Markings
Date of Birth
Name, Address and Telephone Number of Owner
OFA# and Date
CERF# and Date
Date of Brucellosis Test
The stud fee of $________, $________ payable upon presentation of the bitch and the remainder payable when the puppies are born, has been agreed upon by both parties. This fee includes ___ days board and pick up/delivery service to _________________________ airport, if necessary.
Conditions of Service:
1. The owner of the bitch will provide written guarantee that the bitch is current on all vaccinations, free of internal and external parasites, clear on thyroid, clear of brucellosis, and clear of vaginal/uterine infections. The owner of the bitch will also provide OFA and CERF certificates.
2. If the bitch fails to be in whelp, the owner of the bitch must give notice to __________ AKITAS not later than 10 days after due date for whelping. Unless such notice is given, the right to a return service is forfeited.
3. No stud service fee will be refunded in whole or in part. The fee is paid for stud service alone, not as a guarantee of pregnancy or of live puppies. Two living puppies at 2 weeks of age is considered a litter. If the bitch fails to whelp a litter, a free return stud service to the same stud will be provided to the bitch listed above upon her next heat cycle. If the stud dog listed above is not available, the stud service fee can be applied on another stud dog owned by __________ AKITAS, if agreeable to both the owner of the stud dog and the bitch.
4. If the bitch changes ownership, right of full return stud service is at the option of __________ AKITAS.
5. It is specifically agreed that the owner of the stud dog is not obligated to sign an application for registration of this litter until and unless stud service fee has been paid in full.
6. If artificial insemination is deemed necessary, all expenses will be borne by the owner of the bitch, including costs for ovulation smears and progesterone testing.
7. It is the responsibility of the owner of the bitch to deliver the bitch to the stud dog. Shipping fees and other transportation costs are the responsibility of the owner of the bitch and are not included in the stud fee. Bitches shipped by air to the ____________________ Airport will be picked up/delivered at a date and time mutually agreeable to the owners of the stud dog and the bitch. Usually, the bitch is shipped in her 7th or 8th day of heat and bred a minimum of 2 times before she is shipped home.
8. If the bitch remains longer than _______________ days at the __________ AKITAS, boarding fees shall be charged at a rate of $____ per day per dog.
9. Additional terms and conditions:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Signed:___________________________________________________________________
Owner of Stud Dog
Date
Signed:___________________________________________________________________
Owner of Bitch Date
Record of Breeding
Date
Date
Date
© Copyright 2002; The Lone
Star Akita Club of Houston
All Rights Reserved