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.

Relatively Speaking

Tierce: What are you so happy about?

Me:  I found some cousins.  Connected with them on Facebook.

Tierce:  What’s so great about that?  Everyone knows who their cousins are.  It’s in their pedigree.

Me:  It doesn’t quite work that way, Tierce.  Humans don’t always know if someone’s related to them.

Tierce:  Sure they do.  Just look in the OFA database.  My cousins are in there.

Me:  A) Humans aren’t listed in the OFA database.  B) Not every dog and not every relative of yours is listed in the OFA database.

Tierce:  Then look at your pedigree.  When did I become a service dog?  It’s like I have to guide you through this.

Me:  Look.  People aren’t listed by pedigree in Canadian records.  You can find out more about your relatives by researching your geneaology, but it’s not usually just sitting there unless someone’s into that kind of thing.

Tierce: I thought you have registration papers.  What’s that?

Me:  My birth certificate.

Tierce:  Looks official.  What breed are you, anyway?

Me:  Human.

Tierce:  You have papers, shouldn’t you have some kind of name that tells someone what you do?

Me:  I’m a dog daycare worker, but that’s not all I am.

Tierce:  What were you bred for?

Me:  Nothing, really.  My mom decided to have a baby, I guess.

Tierce:  Was she tested clear of anything?  How about your sire?

Me:  Uh… not that I recall.

Tierce:  Where did she get you?

Me:  You mean have me?  Vancouver Children’s Hospital.

Tierce:  So you have a fake registration, your parents weren’t tested clear of anything and they got you at some store.  Wow.

Me:  No!  It’s not like that!

Tierce:  Look, I’m not judging your worthiness as a human or whatever it is you call yourself.  I’m just saying it’s good that you’ve never decided to have pups.

Me:  Children.

Tierce:  Whatever.  Why did you decide that, by the way?

Me:  The knowledge that I would have conversations like these somewhere down the line.

Fully Fenced Yard

One of my co-workers wanted an Australian Shepherd.  She was employed by the same dog daycare that employed me and worked part-time for an obedience trainer, running the puppy training classes.  She already had a Boxer who attended daycare with her and occasionally demoed in the classes.

She was turned down by two different kennels.  The reason: she didn’t have a fenced yard.

Another co-worker…

View On WordPress

Thinking

2015-01-31 15.55.44

With the power of my mind, I will impel the cheese off the counter.

 

Me: What are you thinking?

Tierce: If I took a running leap on top of the counter, I could eat that cheese wrapper.

Me: What?

Tierce: I mean, I would never do such a thing. While you were watching.

Me: Apparently science says that while you have an emotional life, you don’t necessarily think that I do. Or that I am even a thinking being at all, really.

Tierce: You’re writing a conversation with your dog on your dog’s Facebook page.

Me: But what do you think about me as a thinking being?

Tierce: You’re writing a conversation with your dog on your dog’s Facebook page.

Me: You’re just repeating yourself. Are you aware of me as a separate thinking entity?

Tierce: You’re writing- you know what? Fuck this. The answer’s no and can I have that cheese wrapper now.

Me: No! Wrappers are bad for you. Bad!

Tierce: I will now stare intently at the door and growl.

Me: What? What’s there? Tierce? Who’s at the door? Tierce? COME BACK HERE WITH THAT WRAPPER, YOU LITTLE SHIT.

The Weirdest Email Ever

It all started with a friend sharing this Facebook post. So, I sent this to a couple of British Columbia Search & Rescue groups:

Subject: Donating body for the purpose of search dog training

So, did that get your attention?

Hi, my name is Julie and I’m writing you with a pretty weird question: Is it possible to donate one’s body to a SAR organization for the purpose of training search dogs? I happened upon a friend-of-a-friend’s Facebook post about donating their placenta and thought, “Well, that’s cool, but what amazing training feats they could perform with a *cough*-pound body!”

I’m already an organ donor and, quite honestly, if I die, I’m not going to have any use for the rest of me. And I think this would be a lot more useful to the world than being scattered to the winds in a solemn tear-filled ceremony. (If I believed in the afterlife, I might actually spring for this – so I could hang around to see who cries – but I don’t.)

So, please let me know if this is possible or, if not through you, which avenues I might try to effect this admittedly unusual method of disposing of my corporeal form.

Thank you

I’ll let you all know how it goes.

RIP Cory Rottweiler

cory tierce digging

Cory was found running loose in Duncan, BC in late 2012.  He eventually found his way to West Coast Rottweiler Rescue, where he ended up adopted by my friend, Paul.  Tierce and Cory mostly got along and Tierce really enjoyed walks with him.

Almost two years to the day that Paul announced Cory’s arrival, he announced Cory’s departure.  Cory suffered from spinal spondylosis, a degenerative condition that eventually made it difficult for him to walk.  Complications of this and some other spinal damage ended Cory’s life on December 13th, 2014.

The bond between people and their dogs is such that it forges bonds between people who would otherwise never communicate.  When TIerce posted about Cory on his page, a number of people responded.  Do they know Paul?  No.  Do they know Cory?  No.  What they do know is the aching gap that opens up once you realize that you are never going to come home to your dog again.

So many of us repeat this process over and over again with a multitude of dogs.  It’s like watching Titanic.  We know the ending.

Maybe that’s what connects people so strongly when they hear someone has lost a dog.  It’s like any deeply felt loss that someone who has not experienced it cannot quite understand until it happens to them.

What makes loss like this more difficult is the pervasive idea that animal companions should not be mourned because they are animals and not people.  (The people who express this feeling don’t seem to realize that they are belittling the feelings of a human, the being that they are supposedly holding in higher value.)  Despite the wrath of the mighty Internet when someone injudiciously decides to point this out, many people feel hampered in expressing their grief.  (Don’t worry; I’m not one of them.  Tierce will have a wake).

At the same time, this feeling that we are numbered among the privileged few to love a dog beyond all reason binds people like little else.  You may not get the milk of human kindness for the many slights and injustices that life hands out to everyone, but if your dog has died… strangers will reach out to people across the world to let them know that they are not alone.  That it’s not wrong to feel like a child has died.  That the amount of love and money you just poured into an animal that died anyway was not ill-spent.

There’s a lot wrong with the Internet, but amidst all the horrors and news and kitten videos, there are places you can go where you know that people will understand.  In death, as in life, dogs bind us together in the most amazing of ways.  Avatars, ambassadors and symbols of selfless love.

The most remarkable aspect about the bond between dogs and humans is how they so perfectly reveal the human condition.  They highlight our foibles, our failings and the highest, purest selflessness that one being can express towards another.   I don’t believe that canine loyalty and companionship are the reasons we love our dogs so much and mourn them so intensely.  I believe that we celebrate, love and mourn the vessel that we pour so much of ourselves into, the mirror that looks back at us and tells us that we’re not all that bad.

coryjulie