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afton
14-04-04, 11:19 PM
Just a warning and reminder when dealing with other people, GET THINGS IN WRITING and ensure that both parties requirements/reasonable expectations are specifically and clearly stated.

I won't go into much detail as I don't want this to become a who is it thread and end up like other threads where they have had to be terminated and or deleted because of legal issues etc.(Bernie if you feel this should stop here just delete it).

It has come to my attention that one person (who will remain nameless) received a reasonable deposit of several thousand dollars for an equine they had for sale. The purchasers have now decided to not purchase this equine and asked for their deposit back and the vendor flatly refuses to refund any of the money. Both parties are apparently seeking legal advice.

This same person had someone elses equines in their care to be shown and clipped them prior to a show even though the owner instructed them that they were not to be clipped and the show standard apparently states to be shown unclipped.

Neither of these people appear to have anything in writing.

I am not saying this person is a bad trainer but I am also aware that some of the training methods have been observed by others without their knowledge and the feedback was negative as they think some of the things this person does is undesireable.

There is always two sides to a story and we don't know what was actually agreed if anything between the parties.

The moral is:

Get things in writing.
If you leave a deposit on an equine it needs to be clear if the deposit is refundable.
If your requirements are reasonable and the person won't listen to you then remove your equine from them.
Check into the person's reputation with other people (ask around).
Observe the person working with your equine (has the equine's behaviour improved or gone backward, are they relaxed or highly strung etc.)
If you're not happy remove your equine and place it somewhere else as you own the equine.

Kind Regards,

Afton

LisaL
15-04-04, 12:38 AM
Afton

If we all behave ourselves this could be a good thread on the legalities of buying and selling.

While I feel sorry for your friends for losing their money, the bottom line is that when they put money down on the horse they entered a contract to purchase the horse. My understanding of the legalities is that your friends are now an unsecured creditor and that the vendor does have the right to sue your friends for the outstanding monies owed on the horse. Your friends are not entitled to a refund on their deposit.

I've seen sales go belly up before, and in every instance the vendor has been entitled to keep the deposit, be it the purchase of a horse or of a car. Remember, the vendor has spent money preparing the animal for sale, upkeep, has turned away other buyers, paid for advertising and in general incurred costs.

Yep, I'd advise that people sign a contract before agreeing to purchase a horse on terms, and things to think about including in that contract are insurance costs, cooling off periods, responsibility for care and upkeep of the horse, as well as %deposit and timing and number of repayments.

Lisa

novah
15-04-04, 12:47 AM
I am so glad that when we sold a horse to a friend on terms we made her sign a contract. As half way through the terms the horse died and she thought that because the animal died she didnt have to continue paying.

Well we took her to court and won. If we had done it purely on a verbal contract it would have only been our word against hers which aould have drawn it right out.

Now whenever we sell a horse, even if it isnt on terms, we make the buyer sign a contract which states the purpose they intend the horse for, and that it was sound and drug free when it left our property.

Some people are very dirty in this imdustry and the best thing to do is cover your own butt!

afton
15-04-04, 12:56 AM
Hi,

The purchaser wasn't a friend. Just thought I'd raise the issue's and importance of contracts and things to watch out for.

Kind regards,

afton

melsy
15-04-04, 12:56 AM
Im with Lisa,

After all, if you went to purchase a car, put a deposit on it and then decided not to go through with it, do you really think you would get your deposit back?????

To start with putting such a large deposit on the animal would imply that the purchasers (or would be purchasers in this case) were more than happy with the animal.
Is there a legitimate reason for their backing out of the sale??????

The same thing actually happened to me when i was selling a horse.

Some people came and looked at him on a very HOT day and after riding and riding and riding him i had to 'pull' them of the horse as it was too hot for that kind of riding.

They then wanted to see him jump, that day, so i told them they would have to wait untill it cooled down substantially before they could do so.
This they were happy with so we floated him down the road to an adeqaute facility for them to use, at our expense.

Then they attempted to ride him into the ground again!!!!! so once again i forced them off the horse.

They then put a substantial deposit on him, and asked that we take him to meet them halfway (they lived ages away) so that their instructor could view the horse.

We arraged a date and time and floated him there, again at our expense, only to have him pull rails in the jumping.
I know something was not right with the horse, so when we loaded him onto the float i called the horsie chiro who came out the next day to give him the once over.

Turns out he had a pulled pectoral muscle.
The purchasers then called us and said they had decided not to take the horse and wanted their deposit back!!!

After not only the outlay that comes with selling any horse, we had gone above and beyone the call of duty to be accomodating to these people, and then had to pay for the horses treatement (which was having the chiro out every 2nd day for 1 and 1/2 weeks)
We also informed them as to why he was not jumping well on their last ride (which was the reason they decided against the horse) but they didnt want to know.

Hence they did not get their deposit back, the horse was 'repaired' and then sold to a lovely lady.... what a happy ending!!!

Poppy
15-04-04, 03:52 AM
Sorry, but I too never give deposits back. If the buyer has seen the horse, numerous photographs and videos and decide to buy I always ask for $500.00. If they then decide to back out, they do not get this back.

On one occasion I could have sold the horse 10 times over, but I held it because it was "sold". The buyer backed out because they did not have the rest of the money to buy the horse. I was then a bit worried to advertising the horse again. Despite saying "buyer defult", people still often think that there is something wrong with the horse.

Also, this often happens when buying saddlery over the internet. I have bought a number of saddles and gear. A saddle I bought did not fit quite as I would have hoped, however I did not complain to the seller and ended up just selling the saddle on again. I saw a number of photos of the saddle and it was then me who decided to buy. Just unfortunate that it wasn't suitable.

afton
15-04-04, 05:13 AM
This also raises the issue of what is a reasonable deposit not to refund as some people will accept a small deposit which they will not refund as you say about $500 but what if the person pays a lot more. As an example say it was $5,000 or $10,000 and they changed their mind would you keep the whole $5,000 or $10,000 or would it be reasonable to request most of it back.


Kind Regards,

Afton

dragonlady
15-04-04, 06:06 AM
It's up to the buyer to make a firm decision about their purchase before they part with their money, whatever the amount. If they can't make up their minds and miss out well bad luck. From recent experience there seems to be a culture of people who think that they can pay a deposit to hold a likely horse whilst they continue to look around to see if there's anything better available, then believe they can demand the money back. Even worse are those who negotiate the price, pay the deposit, waste your time for a couple of months until any other prospective buyers have bought elsewhere, then demand a cheaper price or "their" money back. Sorry, a deposit confirms a sale and the seller is entitled to expect to be paid. This happened to me not so long ago and yes I kept the deposit too. The people involved had wasted over 3 months of my time and money, I had turned away 10 other serious enquiries but fortunately she had left a message on my machine describing her needs for the horse and confirming the sale, even better than something in writing.

KLM
15-04-04, 06:22 AM
Unless written in a contract to the contrary, I would definitely not expect or give a deposit back if the sale didn't go through. A deposit, in my opinion, then covers the seller for turning away other prospective buyers whilst waiting for the full money to be paid. Regardless of how much the deposit is, it's just that - a deposit. What ever amount both parties agree to, I don't think it would ordinarily be refundable unless actually stated in writing.

EJ
15-04-04, 06:50 AM
I also, am not going down the path of naming names.
A friend who trains racehorses gave a well-known 'respected' high-level horse dealer a horse on the understanding payment would be made within a certain time frame.

The horse was sold overseas for a substantial figure by the aforementioned person and still today, the trainer has received nothing. Shocking considering the original sale figure was $1000.

However much this fellow competitor dissapoints me, it should serve as a warning to others. The racehorse trainer may have been insignificant in the dealers eyes, but its incredible how small the world is and news travels fast.

Kath
15-04-04, 07:54 AM
I am in the process of buying a horse now. I have left a $200 deposit which I don't expect to get back. The vet check is being done tomorrow and if all goes well the girl has agreed to let me take him on trial for 2 weeks.

What is the normal procedure for taking a horse on trial. Do you pay in full up front with something in writing saying that it is refundable less the initial $200 deposit if he isnt as quiet as she says.

Also what about insurance, will her insurance cover him while he's with me or is it better to organise insurance myself.

melsy
15-04-04, 08:25 AM
For this i would be entering into some form of written contract.

From a purchasers point of view, trials are fantastic, but from a vendors point of view, they can be hell...

not so though if everything is sorted and agreed to before the trial begins..


Just think though, if you decide that you do not want to purchase the horse after the trial, due to something being wrong with the horse, the vendors may not refund your monies as they could claim it is your fault for something being wrong with your horse

dragonlady
15-04-04, 08:30 AM
Trials are negotiated between the parties involved, but always, always confirm the arrangement in writing, signed, witnessed & dated. The owner's insurance won't cover the horse whilst he's not in her care & control, so it's up to you to cover yourself. If something did happen to the horse you will have to pay for him in full, no question, no argument, so you have to decide whether or not to insure for yourself.

Personally, I believe that the horse should be fully paid for up front after any vet checks have been done but prior to the horse going on trial. This is fair. Why should one party have both the horse & the money? That's a lot of trust in today's world. I also believe that a video should be taken on the day the trial begins. It will show the condition, any little scars or bumps & all paces should be taped to indicate the level of soundness before the trial. Saves trouble later if something did happen.

afton
15-04-04, 11:11 PM
I'd get anything in writing so all aspects are clearly set out and understood by both parties.

Regarding the initial post, I find it interesting that there were three issues in the first post but the only one discussed was the money one. Seems to tell me a lot. There were some good points like when the person who bought the horse on payments,the horse died and they thought they didn't have to keep making the payments. That's like purchasing any item (that you take home) and it breaks down (you still have to pay for it) and the people who kept running the horse into the ground (personally I would have given them the flick the first time as if they are doing this in front of you what sort of home would it really have anyway).

I'm now going to play "devil's advocate" as some of the initial posts appear to concentrate on the seller's perspective and obtaining "compensation" for a lost sale even though the horse is still in your care, can be resold for similar money and the other callers could have been tyrekickers (like a lot of them are) and you would have to take care of the animal anyway if it didn't sell.

You seem to concentrate on the what ifs. There are always a lot of what ifs in life. It's called LIFE so do you expect compensation for life? No wonder NSW is so litigous.

The "compensation" thing is fine for the seller (money appears to grow on trees) but what if you were the purchaser (having limited funds) and for some reason had to withdraw from the sale, wouldn't you try and get some or all of your money back, especially if you left a substancial deposit?

Surely if a substancial deposit is left there is a win/win situation where the purchaser pays for the advert to be readvertised and gets the remainder of their money back. Remember your reputation is at stake and good news travels fast but bad news travels faster. You may make money in the short term by doing this but in the long term people get to know you and will steer clear. Remember "What goes around comes around".


kind regards,

afton

dragonlady
16-04-04, 12:36 AM
Afton, I think that you expected sympathy here for the people you were speaking about and it hasn't happened. Sellers have limited funds too and usually this is the reason they are selling the horse in the first place. As you say, life happens and if circumstances cause the buyers to withdraw from the purchase after doing the deal then why should the seller have to rearrange all their own plans because of it?
As you can see from the posts so far most of us believe a deposit is a payment for the horse to be forfeit if the buyers pull out and there is no damage to anyone's reputation for this. It's not even bad news, just a bit of gossip. We've all been both buyers and sellers and can see the story from both sides quite well, but the fact is when you're buying a horse it's up to you to protect your own interests, foresee your own potential problems and act accordingly. It's time people took responsibility for themselves rather than trying to shift the blame onto others for their mistakes.

LisaL
16-04-04, 12:47 AM
Afton,

Because the only section I disagree with you is the money section. It doesn't matter how large or small the deposit is. As soon as you make a verbal commitment to buy, you have committed to buy and the seller can go to court to extract the money they are owed by you. So when shopping for a horse, or anything for that matter, make sure you are quite clear in your intentions.

As to trainers, well I agree, be very clear about how your horse is to be trained, and it is the owners responsibility to take ownership of the care of the horse. Again, a written contract is a very good idea. But horses, like small children, cannot run home and tell tales. If you don't think anyone can look after the horse the way you can, either don't send it away, or pay the trainer to come to your property and train the horse under your eye, this is now happening in the arabian world, and I don't see why it can't happen in other areas. From a trainer's point of view there's more profit to be made from being paid for travelling time and the actual time working with the animal on the owners property and care.

Regards

Lisa

afton
16-04-04, 01:10 AM
Hi Dragonlady,

Thanks for your reply, I wasn't after sympathy for them,more a compromise and understanding. I personally wouldn't be as black and white as some of you. I personally would hate to find myself purchasing a horse, pay a deposit, have unforseen circumstances occur causing me to withdraw from the sale and to be told besides losing the horse I've also lost all my money. Therefore I can understand how some people would feel when it happens to them.

Kind Regards,

afton

Laverne
16-04-04, 01:12 AM
I guess the easy way to approach this is to consider why monetary deposits are used in the first place. We quite rightly wouldn't be happy to accept a 'verbal' depost on a horse, where the prospective purchaser indicated their interest, but required some time to do whatever - get a vet check, speak with their coach or partner etc. And in the meantime, the vendor puts off other interested parties, where the horse could have been sold a number of times over. I think it's generally accepted a monetary deposit indicates genuine interest by the purchaser, but the actual sale is dependent on other issues. In exchange, the vendor holds the goods (horse) and the negotiation between the two should stipulate the time frame the horse is to be held for, and the reasons as to why. It is at this point the prospective purchaser should seek to clarify with the vendor if the deposit will be fully refunded if the horse is found to be not suitable, or if they simply change their minds. If that is not done, I'm unsure on this, but I don't think there is any law in Australia that requires the deposit to be refunded.

Common sense would indicate that only a small depost should be left for the very reason that you aren't entitled to get it back, unless there is some skullduggery involved, and that will require legal action. My usual deposit amount is $100 and on two occasions, I have forfeited that - one due to a failed vet check and the other when I simply changed my mind.

afton
16-04-04, 01:18 AM
Lavern,

I have problem with the forfeit of a small deposit but when you pay 1/3 or even half the value of the horse, I feel you should atleast be able to get some of it back.

Kind Regards,

afton

LisaL
16-04-04, 01:30 AM
Afton,

I still don't think the size of the deposit entitles you to a refund.

I've bought two horses on terms, 1st horse was 1/3 value deposit, 2nd horse as 1/4 value deposit. If at any stage during the process I had stopped payment I would have forfeited my money. Honestly, on the 1st horse, it was difficult to pay him off towards the end, simply because I moved interstate and was underemployed for several months, I very nearly couldn't make the repayments, and if I had failed to pay that horse off (I was able to negotiate a longer repayment scheme with the owner), then I would not have expected my money back at all.

I've also learned the hard way from sales, if the buyer isn't prepared to put a substantial percentage of the money down as a deposit when buying on terms, then they're not a serious buyer. I would never again let someone put a $100-$300 deposit down, those are usually the buyers who do a runner, and I also think they waste a lot of their own money.

It is hard when you lose a lot of money, but its still the way the cookie crumbles. Itís a hard world.

(NOTE TO SELF - Do NOT move interstate or throw in job ever again while paying off horse)

Regards


Lisa

jay
16-04-04, 02:27 AM
In my view deposits tend to be around the 10% mark and I agree with everyone who says that if the purchaser changes their mind they should forfeit their deposit. However if the horse fails the vet check then I think the purchaser should get their deposit back - all of it. I think this would be supported by law - if you buy something and it proves to be defective you are entitled to return it and have your money returned and I think that the same rule should apply here - particularly if the horse was advertised as suitable for dressage, eventing, or whatever. Obviously if it fails its vetcheck it is not suitable for the purpose for which it is being bought and I think any prospective purchase would have every right to have their money returned.

R Craig
16-04-04, 02:58 AM
Afton,
I agree with a lot of what you have questioned and points you have brought up.

If I was selling a horse and a buyer pulled out of the deal for what ever reason IMHO Id be thankful that it didnt go to them, realising it most likely would not have been in the best intrest of my animal to do so.

If there was no legit reason for the withdrawal from sale then I personally would expect to loose all of my deposit (it would depend on how much I paid).

I made 2 calls on this ,one to the Dept Of Fair Trading and one to the ACCC and this is what they said-

DFT-It is up to the seller to set the terms on the agreement then it is up to the buyer knowing what the outcome will be ie loss of dep. If the withdrawal from sale is due to medical reasons the REPAIR,REPLACE,REFUND comes into play be it a horse or electrical appliance.
They also offered this advice to buyers, write on the agreement "if vets report is agreeable Im bound to this agreement" therefore if the vets report fails you are intitled to all of your dep back.

ACCC-If the terms and conditions are made known to the buyer at the start in writting then sellers are intitled to withhold the dep-same advice as DFT.
So I guess their advice is saying exactly what you are saying GET IT ALL IN WRITTING!!!!!!!!!!!!!!!!!!!!!!.

dragonlady
16-04-04, 03:35 AM
Every horse ever advertised will have some problem noted in a vet check and it is becoming increasingly evident that some buyers are using minor problems to stall, change, get out of sales and expect to be refunded. In one case known to me personally such an excuse was attempted to reduce the agreed price by a third. No, the buyers were after a pleasure horse, not an international eventer ! Fortunately the terms, conditions, buyer's requirements etc had all been well documented so really there was no argument.
Get your vet checks done before the deposit is paid. If you miss out on the horse because of the delay then you should have acted faster yourself.
I have bought many horses, and sold quite a few as well. I can see the issues from both sides and have come to the conclusion that it's up to you to protect yourself as best you can in either situation by the advice first offered by Afton - get it in writing.

afton
16-04-04, 03:46 AM
Thanks Abbey Angel,

My understanding of what you just posted is.

The purchaser needs be made fully aware by the seller at the time all the terms of the sale including the ammount of the deposit, if the deposit is refundable or not and the circumstances under which the deposit will and will not be refunded eg. horse not passing vet check. That this must be in writing and agreed to by the purchaser. This also means that any monies above the agreed deposit paid are refundable if the sale is terminated before completion.

Is this your understanding.

Kind Regards,

Afton

LisaL
16-04-04, 04:05 AM
Afton,

The deposit is ONLY refundable on termination of the sale if your original agreement IN WRITING says it is. So if you put a deposit down and SIGN a CONTRACT which says that sale is SUBJECT to SUCCESSFUL VET CHECK, yep then fine you can have a deposit back. If you didn't sign a contract, you're up the creek so to speak.

Think about buying a house. We put a substantial deposit down on the purchase of the house but BEFORE we hand the money over we SIGN a CONTRACT which says that this is SUBJECT to the following CONDITIONS. If at anytime during the agreed 'cooling off' period I pull out of the contract I get the majority of my deposit back less a handling fee. Once the date on the cooling off period is passed, then I HAVE to buy that house whether I want to or not. So its up to me in that first 4 weeks to make sure I organise my inspections and finance, cause once that contract goes nonconditional, I'm committed.

IF your friend had signed a contract at the time of putting a deposit down with conditions such as 'subject to x, y & z) then your friend would have a leg to stand on. Now, if I put a deposit down without signing a contract, or having it conditional, then I would have to be prepared to lose my deposit. If you pull out for frivolous reasons (eg, found another horse which is prettier and don't want horse a any more), then if you really don't want horse A, you will have to expect to lose your deposit.

Lisa

afton
16-04-04, 04:20 AM
Hi Lisa,

As I've said before it's not a friend.
Secondly my understanding is the purchaser needs to be made aware by the seller at the time that the deposit is not refundable and agree to this condition, you can't just spring it on them when they try to cancel the sale and get their deposit back.
The house ones you mention, it is in the contract that you sign and are able to read this before signing.

Kind Regards,

Afton

R Craig
16-04-04, 05:06 AM
Yes Afton that is my understanding of it also.

Chezvic
16-04-04, 05:08 AM
>Also what about insurance, will her insurance cover him
>while he's with me or is it better to organise insurance
>myself.

Just to set the records straight here with insurance. If a horse is insured in Australia check the policy to see if the geographical limits are 'Australia wide'. If it say's this then the horse would be covered anywhere in Australia. To then continue from that it's likely that the policy will include conditions that state that the animal should be in sound health and free from injury at the time of the commencement of the policy, that the animal shall remain in the geographical limites of the policy and that the INSURED, HIS AGENT AND SERVANTS, shall at all time provide proper care and attendtion, adequate food and water and daily supervision for the animal.

Basically what this means is that if you as the 'owner' of the horse (the Insured) passes care of that horse to someone else - eg a trainer, horse is leased out or horse on trial etc - that the insurance will still cover that horse PROVIDED that the CONDITIONS of the policy are met and that the horse is looked after adequately.

If, for example, you sent your horse on trail to someone and he got out onto the road and was hit by a car, if in the investigation of the claim it was found that the people who had the care of the animal were negligent and did not have adequate fencing - then you may not get your claim because the conditions of the policy were not met.

On the other hand if all has been done by the letter then there should be no reason why a claim could not be considered.

imported_bill
16-04-04, 03:46 PM
The point being missed in this discussion is exactly what is the deposit for? In my opinion its not something for the buyer to use use to "hold" the horse while he decides whether to go through with the sale or not. Neither is it an amount to reward the seller in the event that the sale doesn't go through.

The deposit is purely and simply a part of the purchase price. Its legal status is as part of a binding contract between the buyer and seller. A contract must have 3 elements - offer, acceptance and consideration. Paying a deposit means that the buyer has agreed to buy and the seller has agreed to sell, subject to certain conditions. The deposit constitutes part of the consideration and makes the contract binding legally upon the parties.

Now it may well be that the purchase is subject to a vet check, or suitability after a trial, but at the time the deposit changes hands the horse is sold and legally the vendor can expect the buyer to go through with the sale. If the other conditions may void the sale, the issue of who gets the deposit must be covered (preferably in writing) as a part of whatever agreement was made about the vet check or whatever. No agreement almost certainly means the deposit stays with the vendor.

The issue of how big the deposit should be is just another negotiation between the parties. Clearly it could be anything from $1 to the whole purchase price. If the buyer is concerned there is any reason not to go through with the sale, he should deposit as little as possible. If the vendor doesn't agree, he can always walk away from the sale.