Notes On Breeder Contracts in BC and Canada

2014-08-17_162459

“Hang on. I just have to get the paperwork.”

Tonight at the Nanaimo Kennel Club (seriously, join your local kennel club and you too could possibly benefit from speakers like this), I had the privilege of hearing lawyer Jennifer Hubbard speak on contracts, specifically breeder contracts with purchasers.  It was very informative and I’ve decided to do a blog post based on my notes.

Disclaimer: The following is from my notes and should not be construed as legal advice.  Go see your own lawyer!  Each case is different and what is written here may not apply to you in its entirety.    Hell, it may not apply to you at all, depending on where you live and the laws therein.

Basically, what I’m saying is that I learned a lot, but this isn’t something you should use to base your contracts off of necessarily – I think it’s worth it for anyone looking into serious contracts to consult with their own lawyer. OR… get together with a bunch of like-minded breeders to consult with a lawyer and share costs.

What Is A Contract?

Our law is based on common law, which is – as I understand it – derived from English Common Law. Under common law, you need 3 things for a contract to be binding:

1. Offer (I’m going to sell you a dog for $1000.00 or a goat)

2. Acceptance (I will buy this dog for $1000.00 or a goat)

3. Consideration, which is something exchanged (Purchaser gives seller $1000.00 or a goat)

That is a contract. It does not have to be written to be binding. It’s easier if it is written, because then a court of law doesn’t have to devolve into a he-said-she-said debate.

Consideration can be as little as $1 or a dead gerbil – it’s anything that changes hands to pay for something.

If an offer is given and accepted, but no consideration changes hands, then that contract is not legally binding.

Terms

Representation:  Things you’re promising the other side.  Guarantees, including health and temperament.  Things you’ll have to live up to if the contract becomes legally binding.  Otherwise, the other party can get out of the contract.

Conditions:  Things that have to be met before the contract is completed.  Payment, perhaps a vet visit, shots… something that has to be done before the contract is made complete.  If conditions cannot be met – say the purchaser can’t pay for the dog, the contract is void.

Covenants:  Ongoing conditions.  Promises to keep the dog in the style to which it has become accustomed.  Agreements to never breed the dog, even if he sees a bitch he really likes.

Dogs: Chattel or Family?

The problem in British Columbia/Canadian law, at least, is that dogs have often fallen in between chattel (things owned) laws and ‘family’ law. In some judgements, there has been consideration of the best interests of the animal, making many cases involving dogs fall into one of those cracks that judges hate to have to deal with: the case where there is no clear course of action predicated on by a previous judgement.

What many courts are treating breeder contracts as is ‘adoption’ contracts. This acknowledges that animals are different from, say, a car or a house. BC and Canada law are fuzzy on this kind of contract. If the average purchaser’s contract for an item is a Beagle, breeder contracts are an ungroomed Poodle.

It’s a struggle for the courts, because legally, dogs are chattel. You either own a dog or you don’t. However, it’s become clear that, for many Canadian families, dogs are considered and treated as members of the family.  So this puts the courts in the position of disposing of chattel that is a member of the family… which can make them cranky.

In the rare cases that a breeder has been able to enforce a contract to have a dog returned to them, they needed to provide proof of neglect or abuse. What proof would sway a judge is unclear (not covered in the talk), so I would venture to say SPCA reports, photos taken of the dog, etc.

However, if an owner sells a dog in violation of the contract, the person they sell the dog to is not bound by the contract in any way.  They own the dog.

So what should breeders do to make their contracts more enforceable?

Unfortunately, you’re not likely to make someone return a dog or prevent them from breeding it solely with a contract that says they have to.  However, you may be able to make it very financially harsh to contravene the conditions and covenants set out in a contract.

Identification

Identify yourself by your legal name if you run a sole proprietorship.  If you run ABC Kennels, but your drivers licence says Jane Doe, the contract should identify you as Jane Doe.  If you represent an incorporated company called ABC Kennels Inc. you’re probably a commercial breeder and I probably hate you, but you should legally call yourself ABC Kennels Inc.  (Including the Ltd. and Inc. is very important when identifying yourself in a contract.)

Identify the purchaser by their legal name.  If they say “Call me Whizzy; everybody calls me that”, that’s fine, but on the contract you put down Throckmorton Twillingsworth III, if that is what is on their drivers licence or BCID.  The same goes if they are purchasing as a company.  I probably hate you both at this point, but be sure to put down the legal company name in its entirety.

Identify the dog in question clearly on the contract.  Identify the tattoo, microchip, markings, sex, etc.  Make it clear that it is this dog and no other dog that might be this dog or could be another dog or quite possibly be the dog down the road.

Representations: To Make Or Not To Make

Legally, it’s safer to make as few representations as possible.  It sounds good to guarantee health and temperament, but legally, how would you defend yourself if someone took you to court, claiming that their dog was unhealthy or vicious?

The example given seems more aimed at rehomed dogs:  “I know of no instances of aggressive behaviour…” is better than “This dog is not aggressive.”  The first you could successfully defend with the fact that you can only be aware of what you have personally observed.  The second is a lot more subjective.  You might have to prove that you were not, in fact, aware of said dog’s penchant for mailman al fresco.

If you make representations, be as clear as possible about those representations.  I interpreted this to mean that if you’re going to guarantee your dog healthy, do so for a limited period of time.  If you’re going to guarantee temperament, at least put a provision for suitable training and socialization (but you’d have to define that training and socialization, which could put your contract at War and Peace length).

As you promise things, your purchaser can promise things, too.  For instance, your purchaser should acknowledge – in writing – that they are accepting responsibility for all costs associated with health care for the dog.

You cannot go wrong with overkill.  It’s better to have exacting detail than ambiguous wording that a court would have to deliberate over.

Clear Covenants

If you are going to put covenants into your contract (and what responsible breeder doesn’t?), you will have to be clear.  If the dog must be spayed or neutered, how old must it be before the contract is breached?  Come up with an age and put it in there.  If allowing or disallowing surgery is an issue (cropping and dewclaws, etc) you’ll want to be clear about what the parameters are.  If you want the puppy to go to puppy obedience class, specify ‘an obedience class specifically for puppies under X months, which includes obedience, socialization, playtime, yadda yadda yadda”)

Clear Consequences

Approaching contracts with the attitude that they will just ‘make’ someone do what you want is not going to win you your day in court.  Since dogs are in that fuzzy boundary line between chattel and family, it is difficult for judges to know what to do with breaches of contract… unless you make it easy for them.

Make it easy for the courts to decide in your favour by including clear penalties for breaching contract.  Good things to include are a liquidated damages clause, which should reflect the probable costs of taking the purchaser to court.  (You may want to consult a lawyer just to determine probable costs of a lawsuit.  It will vary, but even one appearance in court could cost upwards of $5000 or more.)

You can specify damages for things like breeding without permission – $X per puppy.

If it’s easy for the courts to see what was agreed to in terms of damages, it’s easier for them to award it to you.  You may not be able to compel the return of the dog, but you may be able to make it very, very expensive for someone to violate a signed contract.

Agreed-upon and Involuntary Breaches of Contract

Say someone buys a puppy as a pet.  They sign a contract agreeing to spay or neuter it by 8 months, but attend a sanction match for fun and then decide they would like to try showing.  They ask your permission to leave little Sprocket with both his little sprockets so they can try it out.  You don’t mind, so you say yes.  Amend the contract in writing.

On the purchaser’s side, if they must breach contract for circumstances outside of their control, they need proof that they have done everything in their power to inform you.  One example is a dog that cannot be spayed or neutered due to anaesthetic sensitivity or something of that nature.  Sufficient proof might be a vet’s letter stating that the dog has a medical condition that precludes the operation, etc.

Conclusions

I’m glad I’m not a breeder.

This is by no means an exhaustive look at the subject, but I found it fascinating how contracts are treated in BC/Canadian law (and, I suspect, American law).  I’ve heard it, time and again, that dog sale/adoption contracts are not enforceable… this provides a better understanding of the matter.

It’s not that animal sale contracts are unenforceable; it’s that many contracts are not specifying damages that can be enforced by the courts.

You can’t make the courts force someone to give back a dog, but you may be able to spend their kids’ college fund if they breach your contract and you can a) prove it in court and b) have a contract that clearly specifies the damages the person has to pay.

All in all, a very informative evening and an important reminder to check over contracts to see if yours can be improved.

Disclaimer: The above is from my notes and should not be construed as legal advice.  Go see your own lawyer!  Each case is different and what is written here may not apply to you in its entirety.  Hell, it may not apply to you at all, depending on where you live and the laws therein.

Basically, what I’m saying is that I learned a lot, but this isn’t something you should use to base your contracts off of necessarily – I think it’s worth it for anyone looking into serious contracts to consult with their own lawyer.  OR… get together with a bunch of like-minded breeders to consult with a lawyer and share costs.

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  1. hello, i have a puppy shes a hound will be a year in january, i slrevey need some training for her in multiple ways ive done training before and she was perfect, now shes acting out again as her mommy ( me ) am not home as much as i used to be cause i work fulltime, she isnt home alone all the time tho my father or friends are there with her, i need prices for training if possible & would like to hear from you.Thank you GraceSincerly Brittany & Bailey..:)

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