Exam N
OUTCOME: DO I HAVE TO SELL?
o. As soon as the woman peeled out of Mom’s driveway, Mom called a lawyer. She was sim-
ply incredulous about what had happened. But she was genuinely concerned that she might have a legal obligation to sell the filly to the woman because she was a willing and able buyer, even when Mom had serious and reasonable reserva- tions about letting her filly go to such a home. There are no laws that require the seller of a
horse to sell it to an obviously inappropriate buy- er or situation. In fact, there are laws that could be interpreted to suggest that a seller NOT sell a horse where there is reason to believe that doing so would likely result in serious bodily injury to a child. Even in the face of threats of legal action, here was a situation where the lawyer advised the Mom to let the woman “bring it on.” But the wom- an’s lawyer never called and Mom never heard from the woman again. But the scenario is not uncommon and fre-
quently sellers are faced with a gnawing feeling that a prospective purchaser is just “not the right fit” for their horse. And yet, the prospective pur- chaser wants the horse badly. This situation pres- ents both an ethical and a legal dilemma. Do you have to sell? Morally and ethically, Mom did absolutely the
right thing. And usually, what is moral and ethical is also legal. Legally, if you are selling a horse privately (as in, not in an auction setting), then you have no affirmative duty to sell to just anyone who agrees to pay your advertised price if, based on your “superior” knowledge, you believe the prospec- tive purchaser will ultimately be unhappy with the transaction. In fact, the opposite is true: you probably have an affirmative duty to NOT sell the horse. If this is your reason for saying “no” to a prospective purchaser, then you have a very good defense if a lawsuit is brought attempting to force the sale. This begs the question of whether a law- suit could or would be brought, because anyone can file a lawsuit against anyone in this country— so it is possible. There are a few caveats however. First, when
you tell the prospective purchaser “no,” you should also tell them why—even if you tell them why in somewhat vague terms. The prospective purchaser may not want to hear what you tell
72 March/April 2015
them, or may not even understand your concerns, but that is not really your problem. But it is im- portant that you give an explanation that makes it clear that you are revoking your offer to sell the horse based on a legitimate, non-discriminatory and not arbitrary reason. Although there is an argument that you can withdraw an offer of sale for any or no reason at any time, you reduce the likelihood that you will be sued if you give a rea- son and if you do so before the prospective pur- chaser has agreed to your price terms. In other words, cut the showing and/or negotiation short before you get to the point where the prospective purchaser is shoving a check in your face. Second, if you are planning on selling a horse, it is a good idea to have a written sales agree- ment prepared in advance. In this way you have a solid legal argument that your sale of the horse would have been subject to terms and conditions and that until you offered the written agreement to the prospective purchaser, the transaction was still in the “negotiation” stage—which from a tim- ing perspective means that the seller is still free to withdraw their offer to sell (because the offer to sell really hasn’t been made until the written agreement is presented). This is something of a fine point to understand, but it takes into account that it is entirely legal to sell a horse on a hand- shake without a written agreement of any kind. So having that written agreement waiting in the wings is a way to keep you from getting into a pickle with an over-zealous buyer. Mom’s approach was consistent with the phi-
losophy of a lot of private sellers: “I want to sell this horse to an ideal situation that will work for everyone and knowing what I know and knowing what you don’t know, I cannot sell you this horse and sleep at night in good conscience.” Private sellers sometimes do want to vet prospective pur- chasers and make sure their horse ends up in an ideal situation. There is absolutely nothing legally prohibitive about this approach. It might make it harder to sell your horse, but it also might make it easier to sleep at night. How might that ad read? “Special horse for sale to right home.” It doesn’t preclude a seller from disclaiming warranties in writing at the time of sale, but it is a perfectly appropriate mindset to adopt when vetting pro- spective purchasers at the outset.
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