Breeders Beware (permission To Cross Post)

[~Anne~]

You can't put a contract on a dog once it is sold. It doesn't matter what law you argue it under and I am not able to name the specific laws and rights that it comes under but it is very similar, for example, to buying a lounge. The person who sells you the lounge can not write a contract that forces you to do anything with it. Once it is sold it is yours lock stock and barrel. Dogs come under a consumer law which is why you can not stop a pet shop from selling a dog.

The contract has a condition of sale which is legally binding how ever the dog is considered "goods" so you can affix a monetary value only.

But the condition of sale isnt legal. It takes away the right of the owner to have free enjoyment of and make decisions about their own property.

If I didnt want to give the breeder back my dog no amount of contract I may have signed years ago would make me do it. Thank God.

I think that is what they said - the dog is considered 'goods' and therefore a condition can not be affixed to it as an item of sale (ie goods)

[Steve]

It appears to me that there are a huge amount of demands and expectations made on Breeders to do the right thing to provide people with the very best puppy they possibly can. To do this requires heart and commitment alongside the knowledge and experience. Then some of you expect them to just walk away unless of course an unfortunate health issue arises then you want the supportive and caring Breeder and their wallet back back. It stinks.

ain't that the truth

I agree but it still doesnt change what can legally be done.

[bullmighty]

The dog in question, will never be put up for sale, one of the organistaions staff wants her, which was how the breeder found out the girl wound up there in the first place. The staff member thought this girl looked of this breeders "type" and so emailed the breeder letting them know that this dog had been surrendered to the organisation.

They did not find a chip initially or they would have known who the breeder was straight away, as she is second contact on the chip, it wasn't until the breeder was told what area the person who surrendered the dog lived in, that she gave them a chip number of 1 possible dog. Sure enough after scanning the dog the chip numbers matched.

She was informed that the staff member would be taking the girl home once she was desexed. The dog in question had already had a tubal ligation before she left the breeder and had suffered cardiac and respitory distress once the gaseous anaesthetic was turned off, she was however successfully stabilised with intravenous fluids and Dopram. But will remain as "high risk" when it comes to any future anaesthetics.

The organisation did not take the breeder seriously about the risk involved to the dog if she was put under, and do not accept Tubal Ligation as truly sterile. The breeder had to get her vets practice manager to ring and fax through the dogs medical history and a copy of the letter re her anaesthetic issues that was provided to the original owner so they would not put her life at risk with an unnecessary operation.

The person who surrendered the dog is not the person on the chip, they do not even share the same surname. So the breeder got in contact with her states (SA) canine council and had there lawyer fax through to the organisation copies of the dogs micro chip details and her contract with the original owner. She was quite happy to pay the organisation the standard fee to get the dog back, but has now had contact from the organisations lawyer informing her not to contact anybody from the said organisation at all, and any contact or questions about the dog need to go through the law firm hired by the organisation.

She has been told by the lawyer she will not be getting the dog back, it is now the property of the organisation (and soon to be property, if not already of one of their staff members).

I cannot believe that an organisation that relies on donations from the public to survive, can throw away money that is supposed to be used to save dogs lives, so a breeder cant take back responsibility of a dog she bred? I hate to think how much time and money has been wasted in this case, not to metion other "less desirable" dogs that may have been passed over whilst this dog that has had a home to go to all along takes up kennel space, food and other resources.

As a pet owner (I am not a breeder) it scares the crap out of me that one of my dogs could be surrendered by someone who's name does not appear on the microchip. Good breeders really have their work cut out what a nightmare!

As any owner you should not have to be concerned that someone can claim to be the owner and surrender it. There are laws which protect us from this but we dont know what they did to have ownership proved or authority to surrender the dog when they accepted the animal . If in fact they just said O>K> we have no evidence that you are the owner and have the right to surrender but we will take it anyway they are in breach of the law and may have recieved stolen goods and therefore its a police issue.

The question that hasnt seemed to be asked is where is the owner who made the agreement and who supposedly still owns the dog and what they have to say? Was the dog stolen from them or did they give written approval for them to have authority to surrender it etc. There are also issues coming up here re privacy surrounding the chip etc which may need to be addressed.

.The owner is not talking , there was no written permission , the organisation after realizing no one checked this have now said through there solicitor..... paraphrasing he has been advised by his client( the organisation) that due to the relationship status he is her authorized agent.This conclusion was reached 10 days after this dog was surrendered and after a worker had been able to put her name on this dog .

[Steve]

The dog in question, will never be put up for sale, one of the organistaions staff wants her, which was how the breeder found out the girl wound up there in the first place. The staff member thought this girl looked of this breeders "type" and so emailed the breeder letting them know that this dog had been surrendered to the organisation.

They did not find a chip initially or they would have known who the breeder was straight away, as she is second contact on the chip, it wasn't until the breeder was told what area the person who surrendered the dog lived in, that she gave them a chip number of 1 possible dog. Sure enough after scanning the dog the chip numbers matched.

She was informed that the staff member would be taking the girl home once she was desexed. The dog in question had already had a tubal ligation before she left the breeder and had suffered cardiac and respitory distress once the gaseous anaesthetic was turned off, she was however successfully stabilised with intravenous fluids and Dopram. But will remain as "high risk" when it comes to any future anaesthetics.

The organisation did not take the breeder seriously about the risk involved to the dog if she was put under, and do not accept Tubal Ligation as truly sterile. The breeder had to get her vets practice manager to ring and fax through the dogs medical history and a copy of the letter re her anaesthetic issues that was provided to the original owner so they would not put her life at risk with an unnecessary operation.

The person who surrendered the dog is not the person on the chip, they do not even share the same surname. So the breeder got in contact with her states (SA) canine council and had there lawyer fax through to the organisation copies of the dogs micro chip details and her contract with the original owner. She was quite happy to pay the organisation the standard fee to get the dog back, but has now had contact from the organisations lawyer informing her not to contact anybody from the said organisation at all, and any contact or questions about the dog need to go through the law firm hired by the organisation.

She has been told by the lawyer she will not be getting the dog back, it is now the property of the organisation (and soon to be property, if not already of one of their staff members).

I cannot believe that an organisation that relies on donations from the public to survive, can throw away money that is supposed to be used to save dogs lives, so a breeder cant take back responsibility of a dog she bred? I hate to think how much time and money has been wasted in this case, not to metion other "less desirable" dogs that may have been passed over whilst this dog that has had a home to go to all along takes up kennel space, food and other resources.

As a pet owner (I am not a breeder) it scares the crap out of me that one of my dogs could be surrendered by someone who's name does not appear on the microchip. Good breeders really have their work cut out what a nightmare!

As any owner you should not have to be concerned that someone can claim to be the owner and surrender it. There are laws which protect us from this but we dont know what they did to have ownership proved or authority to surrender the dog when they accepted the animal . If in fact they just said O>K> we have no evidence that you are the owner and have the right to surrender but we will take it anyway they are in breach of the law and may have recieved stolen goods and therefore its a police issue.

The question that hasnt seemed to be asked is where is the owner who made the agreement and who supposedly still owns the dog and what they have to say? Was the dog stolen from them or did they give written approval for them to have authority to surrender it etc. There are also issues coming up here re privacy surrounding the chip etc which may need to be addressed.

.The owner is not talking , there was no written permission , the organisation after realizing no one checked this have now said through there solicitor..... paraphrasing he has been advised by his client( the organisation) that due to the relationship status he is her authorized agent.This conclusion was reached 10 days after this dog was surrendered and after a worker had been able to put her name on this dog .

Geez that's pretty shocking - what state are we in? Any rescue group which has such shoddy surrender procedures needs to be bought into line pretty quickly .

Pacers had a case not long ago where the partner of a person had the dog and needed to surrender it . The registered owner wasnt able to be contacted and there were other issues which meant the owner couldnt be involved. Basically the dog had been abandoned by the owner and left with the ex partner and the ex couldnt afford to keep it. After much agony Bankstown council accepted the dog as abandoned and a stat dec was still required from the partner to state the dog had been left with him and he couldnt look after it. The chip was registered to that adress but owner wasnt able to be located so the dog became the property of the council so only then could someone else take it. My point is this was a very difficult thing to do and all the dots had to be covered first.

Edited September 6, 2011 by Steve

[bullmighty]

You can't put a contract on a dog once it is sold. It doesn't matter what law you argue it under and I am not able to name the specific laws and rights that it comes under but it is very similar, for example, to buying a lounge. The person who sells you the lounge can not write a contract that forces you to do anything with it. Once it is sold it is yours lock stock and barrel. Dogs come under a consumer law which is why you can not stop a pet shop from selling a dog.

The contract has a condition of sale which is legally binding how ever the dog is considered "goods" so you can affix a monetary value only.

But the condition of sale isnt legal. It takes away the right of the owner to have free enjoyment of and make decisions about their own property.

If I didnt want to give the breeder back my dog no amount of contract I may have signed years ago would make me do it. Thank God.

I am not a solicitor my sister is and her area is contract law I have also had another solicitor confirm that the purchaser is in breach of the contract.

[Erny]

It appears to me that there are a huge amount of demands and expectations made on Breeders to do the right thing to provide people with the very best puppy they possibly can. To do this requires heart and commitment alongside the knowledge and experience. Then some of you expect them to just walk away unless of course an unfortunate health issue arises then you want the supportive and caring Breeder and their wallet back back. It stinks.

ain't that the truth

Hi Crisovar. I hope the above isn't directed at me. I have a different story and not one I'm inclined to publicly publish. My situation only serves as evidence that sometimes the breeder hasn't met even the most basic of expectations. By percentage, this is likely to be in the minority and should not tar all breeders as I know from speaking with many other people that there are a good number of excellent ones out there.

[bullmighty]

The dog in question, will never be put up for sale, one of the organistaions staff wants her, which was how the breeder found out the girl wound up there in the first place. The staff member thought this girl looked of this breeders "type" and so emailed the breeder letting them know that this dog had been surrendered to the organisation.

They did not find a chip initially or they would have known who the breeder was straight away, as she is second contact on the chip, it wasn't until the breeder was told what area the person who surrendered the dog lived in, that she gave them a chip number of 1 possible dog. Sure enough after scanning the dog the chip numbers matched.

She was informed that the staff member would be taking the girl home once she was desexed. The dog in question had already had a tubal ligation before she left the breeder and had suffered cardiac and respitory distress once the gaseous anaesthetic was turned off, she was however successfully stabilised with intravenous fluids and Dopram. But will remain as "high risk" when it comes to any future anaesthetics.

The organisation did not take the breeder seriously about the risk involved to the dog if she was put under, and do not accept Tubal Ligation as truly sterile. The breeder had to get her vets practice manager to ring and fax through the dogs medical history and a copy of the letter re her anaesthetic issues that was provided to the original owner so they would not put her life at risk with an unnecessary operation.

The person who surrendered the dog is not the person on the chip, they do not even share the same surname. So the breeder got in contact with her states (SA) canine council and had there lawyer fax through to the organisation copies of the dogs micro chip details and her contract with the original owner. She was quite happy to pay the organisation the standard fee to get the dog back, but has now had contact from the organisations lawyer informing her not to contact anybody from the said organisation at all, and any contact or questions about the dog need to go through the law firm hired by the organisation.

She has been told by the lawyer she will not be getting the dog back, it is now the property of the organisation (and soon to be property, if not already of one of their staff members).

I cannot believe that an organisation that relies on donations from the public to survive, can throw away money that is supposed to be used to save dogs lives, so a breeder cant take back responsibility of a dog she bred? I hate to think how much time and money has been wasted in this case, not to metion other "less desirable" dogs that may have been passed over whilst this dog that has had a home to go to all along takes up kennel space, food and other resources.

As a pet owner (I am not a breeder) it scares the crap out of me that one of my dogs could be surrendered by someone who's name does not appear on the microchip. Good breeders really have their work cut out what a nightmare!

As any owner you should not have to be concerned that someone can claim to be the owner and surrender it. There are laws which protect us from this but we dont know what they did to have ownership proved or authority to surrender the dog when they accepted the animal . If in fact they just said O>K> we have no evidence that you are the owner and have the right to surrender but we will take it anyway they are in breach of the law and may have recieved stolen goods and therefore its a police issue.

The question that hasnt seemed to be asked is where is the owner who made the agreement and who supposedly still owns the dog and what they have to say? Was the dog stolen from them or did they give written approval for them to have authority to surrender it etc. There are also issues coming up here re privacy surrounding the chip etc which may need to be addressed.

.The owner is not talking , there was no written permission , the organisation after realizing no one checked this have now said through there solicitor..... paraphrasing he has been advised by his client( the organisation) that due to the relationship status he is her authorized agent.This conclusion was reached 10 days after this dog was surrendered and after a worker had been able to put her name on this dog .

Geez that's pretty shocking - what state are we in? Any rescue group which has such shoddy surrender procedures needs to be bought into line pretty quickly .

Pacers had a case not long ago where the partner of a person had the dog and needed to surrender it . The registered owner wasnt able to be contacted and there were other issues which meant the owner couldnt be involved. Basically the dog had been abandoned by the owner and left with the ex partner and the ex couldnt afford to keep it. After much agony Bankstown council accepted the dog as abandoned and a stat dec was still required from the partner to state the dog had been left with him and he couldnt look after it. The chip was registered to that adress but owner wasnt able to be located so the dog became the property of the council so only then could someone else take it. My point is this was a very difficult thing to do and all the dots had to be covered first.

This isnt any rescue group this is one of the biggest in Sa , big money bigger lawyers .

[AmandaJ]

A bit of light reading from an Australian University Lecture Document

Promises And Their Enforcement

Because contract's principal function is to facilitate trade, the focus of attention is very much on what is legally necessary to make it work. Let us focus for a minute on what we mean by trading activity. Suppose I say to you that I want to buy your goat. You agree and so I give you the money and you give me the goat. This an immediate exchange. Incidentally supposing, instead of me giving you money, I give you a pig - what is that called? Is that type of transaction a contract? Immediate exchanges are contracts but they do not appear to involve any promises. But, as we have already seen, an immediate exchange may involve hidden promises, for example, there may be an implied promise that the goat should be free of disease. As soon as trading becomes more complicated, as it did in the industrial revolution, there is a need for a more sophisticated model of contract. Exchanges start to involve a complex of promises about the future. Contract lawyers call promises about the future - that something will be done in the future - executory promises. Sophisticated trading is about long-term relationships or at the very least performance projected into the future. It is about the exchange of executory promises.

For example, imagine running a supermarket. Every single item on those shelves is procured by contract. One of the essential features of a good supermarket - one that will attract the customers - is that the shelves should be fully stocked with a wide variety of goods. Imagine what it would be like trying to run a supermarket without the certainty which contract gives, namely, the assurance that the various items will arrive on time and according to a carefully worked out schedule.

Legal Enforceability

This, in turn, requires us to focus on the question: what is required to make a promise binding? In practical terms how can I be sure that your promise is going to stick, legally? I might also be interested in the question: how am I going to be sure that the other party will think that I am genuine. It is just as important that my promises should be taken seriously as it is for me to be assured that your promise is legally enforceable. If I cannot make a contractually binding promise then no-one will do business with me. An example is minors - people under 18. Their ability to trade is severely curtailed by the law. No trader would enter into a business relationship with a minor because his or her promises may be unenforceable. All this goes to show that it is important for trading that people should be able to make legally enforceable promises as well as being assured that the other party's promise is legally enforceable.

So, what should be the criterion of legal enforceability? There are a number of possible ways in which a legal system could answer this question.

Solemnity

For example, it may be that the law would say that solemnity is the key. If there is a well-known way of making legally enforceable promises, for example, that they should be intoned in a solemn voice with the person who is making the promise facing south and standing on one leg - then there would be a way, recognised by law, of making enforceable obligations. Our system of law does in fact have something like that, namely, a way of making promises binding by following a certain ritual. It is called a deed under seal. A deed is a document which has to be in a certain form and which must be signed, sealed and "delivered". Sealed nowadays means buying a little red seal from a law stationers - it used to involve melting sealing wax and imprinting the warm wax with a seal, often part of a ring. It is not even necessary to use a seal. It is sufficient to draw a circle and put the letters "l. s." in the circle. These stand for "locus sigilii" - the place of the seal. Delivered now means very little. It is not necessary to physically deliver the deed to make it binding. Delivery is more about the intention which accompanies the execution of the document. It must be intended that deed is for the promisee's use and benefit. This invariably goes without saying. (For the formalities required for making a deed, see Seddon N and Ellinghaus M, Cheshire & Fifoot's Law of Contract (7th Aus ed) para [4.1] footnote 5).

There was a stage in the historical development of the law of contract where it was argued, particularly by Lord Mansfield, that enforceability should turn on whether or not the promise was in writing. Writing is not the same as a deed which requires more than just writing. Lord Mansfield's idea was rejected in the end in a case called Rann v Hughes with the result that, since then, contracts are perfectly enforceable without any writing, although we shall see there are limited exceptions to that. But basically the position is that writing is not essential for most contracts, however large and important they are. As far as the law of contract is concerned it is possible to order a F111 aeroplane over the telephone. Of course, as a matter of business practice it is not sensible to do this.

Reliance

What other criteria might a legal system develop for making promises legally binding? Possibly another basis would be reliance. If you have made a promise to me upon which I have relied, then there is an argument of fairness that you should not be able to go back on it. For example supposing I promise a large sum of money to a charity which then relies on my promise and makes contracts with builders, architects and so forth to build a new building. Is my promise binding? Should it be binding? We will see that traditionally the law of contract did not adopt this criterion but that this traditional position has changed quite radically in recent times. We will be studying the doctrine of estoppel which has been transformed by the High Court. Estoppel is very much about reliance - its key ingredient is detrimental reliance. We will have a lot to talk about on this theme of reliance.

Exchange

A fourth possible basis for making promises legally binding is exchange, that is, that a promise is only binding if it has been giving in exchange for something. This is in fact the traditional basis for legal enforceability of promises in our legal system. A bare promise - a one-way promise where, for example, I simply promise to give you my goat - is not legally enforceable. (But remember, if it is put in a deed then it can be legally enforced.) Contrast the bare promise - usually called a gift promise by lawyers - with an exchange promise: I will give you my goat in exchange for you giving me a pig. We are talking about promises here. So the deal is I promise to deliver my goat to you, say, next Wednesday if you promise to deliver the pig on the same day. There is an exchange of promises. This is what the doctrine of consideration is all about. We will spend some time examining the doctrine of consideration which has some somewhat mysterious aspects to it.

[casowner]

The dog in question, will never be put up for sale, one of the organistaions staff wants her, which was how the breeder found out the girl wound up there in the first place. The staff member thought this girl looked of this breeders "type" and so emailed the breeder letting them know that this dog had been surrendered to the organisation.

They did not find a chip initially or they would have known who the breeder was straight away, as she is second contact on the chip, it wasn't until the breeder was told what area the person who surrendered the dog lived in, that she gave them a chip number of 1 possible dog. Sure enough after scanning the dog the chip numbers matched.

She was informed that the staff member would be taking the girl home once she was desexed. The dog in question had already had a tubal ligation before she left the breeder and had suffered cardiac and respitory distress once the gaseous anaesthetic was turned off, she was however successfully stabilised with intravenous fluids and Dopram. But will remain as "high risk" when it comes to any future anaesthetics.

The organisation did not take the breeder seriously about the risk involved to the dog if she was put under, and do not accept Tubal Ligation as truly sterile. The breeder had to get her vets practice manager to ring and fax through the dogs medical history and a copy of the letter re her anaesthetic issues that was provided to the original owner so they would not put her life at risk with an unnecessary operation.

The person who surrendered the dog is not the person on the chip, they do not even share the same surname. So the breeder got in contact with her states (SA) canine council and had there lawyer fax through to the organisation copies of the dogs micro chip details and her contract with the original owner. She was quite happy to pay the organisation the standard fee to get the dog back, but has now had contact from the organisations lawyer informing her not to contact anybody from the said organisation at all, and any contact or questions about the dog need to go through the law firm hired by the organisation.

She has been told by the lawyer she will not be getting the dog back, it is now the property of the organisation (and soon to be property, if not already of one of their staff members).

I cannot believe that an organisation that relies on donations from the public to survive, can throw away money that is supposed to be used to save dogs lives, so a breeder cant take back responsibility of a dog she bred? I hate to think how much time and money has been wasted in this case, not to metion other "less desirable" dogs that may have been passed over whilst this dog that has had a home to go to all along takes up kennel space, food and other resources.

As a pet owner (I am not a breeder) it scares the crap out of me that one of my dogs could be surrendered by someone who's name does not appear on the microchip. Good breeders really have their work cut out what a nightmare!

As any owner you should not have to be concerned that someone can claim to be the owner and surrender it. There are laws which protect us from this but we dont know what they did to have ownership proved or authority to surrender the dog when they accepted the animal . If in fact they just said O>K> we have no evidence that you are the owner and have the right to surrender but we will take it anyway they are in breach of the law and may have recieved stolen goods and therefore its a police issue.

The question that hasnt seemed to be asked is where is the owner who made the agreement and who supposedly still owns the dog and what they have to say? Was the dog stolen from them or did they give written approval for them to have authority to surrender it etc. There are also issues coming up here re privacy surrounding the chip etc which may need to be addressed.

.The owner is not talking , there was no written permission , the organisation after realizing no one checked this have now said through there solicitor..... paraphrasing he has been advised by his client( the organisation) that due to the relationship status he is her authorized agent.This conclusion was reached 10 days after this dog was surrendered and after a worker had been able to put her name on this dog .

Geez that's pretty shocking - what state are we in? Any rescue group which has such shoddy surrender procedures needs to be bought into line pretty quickly .

Pacers had a case not long ago where the partner of a person had the dog and needed to surrender it . The registered owner wasnt able to be contacted and there were other issues which meant the owner couldnt be involved. Basically the dog had been abandoned by the owner and left with the ex partner and the ex couldnt afford to keep it. After much agony Bankstown council accepted the dog as abandoned and a stat dec was still required from the partner to state the dog had been left with him and he couldnt look after it. The chip was registered to that adress but owner wasnt able to be located so the dog became the property of the council so only then could someone else take it. My point is this was a very difficult thing to do and all the dots had to be covered first.

This isnt any rescue group this is one of the biggest in Sa , big money bigger lawyers .

Well then if it is who I think it is I am not suprised at all

[~Anne~]

A bit of light reading from an Australian University Lecture Document

Promises And Their Enforcement

Because contract's principal function is to facilitate trade, the focus of attention is very much on what is legally necessary to make it work. Let us focus for a minute on what we mean by trading activity. Suppose I say to you that I want to buy your goat. You agree and so I give you the money and you give me the goat. This an immediate exchange. Incidentally supposing, instead of me giving you money, I give you a pig - what is that called? Is that type of transaction a contract? Immediate exchanges are contracts but they do not appear to involve any promises. But, as we have already seen, an immediate exchange may involve hidden promises, for example, there may be an implied promise that the goat should be free of disease. As soon as trading becomes more complicated, as it did in the industrial revolution, there is a need for a more sophisticated model of contract. Exchanges start to involve a complex of promises about the future. Contract lawyers call promises about the future - that something will be done in the future - executory promises. Sophisticated trading is about long-term relationships or at the very least performance projected into the future. It is about the exchange of executory promises.

For example, imagine running a supermarket. Every single item on those shelves is procured by contract. One of the essential features of a good supermarket - one that will attract the customers - is that the shelves should be fully stocked with a wide variety of goods. Imagine what it would be like trying to run a supermarket without the certainty which contract gives, namely, the assurance that the various items will arrive on time and according to a carefully worked out schedule.

Legal Enforceability

This, in turn, requires us to focus on the question: what is required to make a promise binding? In practical terms how can I be sure that your promise is going to stick, legally? I might also be interested in the question: how am I going to be sure that the other party will think that I am genuine. It is just as important that my promises should be taken seriously as it is for me to be assured that your promise is legally enforceable. If I cannot make a contractually binding promise then no-one will do business with me. An example is minors - people under 18. Their ability to trade is severely curtailed by the law. No trader would enter into a business relationship with a minor because his or her promises may be unenforceable. All this goes to show that it is important for trading that people should be able to make legally enforceable promises as well as being assured that the other party's promise is legally enforceable.

So, what should be the criterion of legal enforceability? There are a number of possible ways in which a legal system could answer this question.

Solemnity

For example, it may be that the law would say that solemnity is the key. If there is a well-known way of making legally enforceable promises, for example, that they should be intoned in a solemn voice with the person who is making the promise facing south and standing on one leg - then there would be a way, recognised by law, of making enforceable obligations. Our system of law does in fact have something like that, namely, a way of making promises binding by following a certain ritual. It is called a deed under seal. A deed is a document which has to be in a certain form and which must be signed, sealed and "delivered". Sealed nowadays means buying a little red seal from a law stationers - it used to involve melting sealing wax and imprinting the warm wax with a seal, often part of a ring. It is not even necessary to use a seal. It is sufficient to draw a circle and put the letters "l. s." in the circle. These stand for "locus sigilii" - the place of the seal. Delivered now means very little. It is not necessary to physically deliver the deed to make it binding. Delivery is more about the intention which accompanies the execution of the document. It must be intended that deed is for the promisee's use and benefit. This invariably goes without saying. (For the formalities required for making a deed, see Seddon N and Ellinghaus M, Cheshire & Fifoot's Law of Contract (7th Aus ed) para [4.1] footnote 5).

There was a stage in the historical development of the law of contract where it was argued, particularly by Lord Mansfield, that enforceability should turn on whether or not the promise was in writing. Writing is not the same as a deed which requires more than just writing. Lord Mansfield's idea was rejected in the end in a case called Rann v Hughes with the result that, since then, contracts are perfectly enforceable without any writing, although we shall see there are limited exceptions to that. But basically the position is that writing is not essential for most contracts, however large and important they are. As far as the law of contract is concerned it is possible to order a F111 aeroplane over the telephone. Of course, as a matter of business practice it is not sensible to do this.

Reliance

What other criteria might a legal system develop for making promises legally binding? Possibly another basis would be reliance. If you have made a promise to me upon which I have relied, then there is an argument of fairness that you should not be able to go back on it. For example supposing I promise a large sum of money to a charity which then relies on my promise and makes contracts with builders, architects and so forth to build a new building. Is my promise binding? Should it be binding? We will see that traditionally the law of contract did not adopt this criterion but that this traditional position has changed quite radically in recent times. We will be studying the doctrine of estoppel which has been transformed by the High Court. Estoppel is very much about reliance - its key ingredient is detrimental reliance. We will have a lot to talk about on this theme of reliance.

Exchange

A fourth possible basis for making promises legally binding is exchange, that is, that a promise is only binding if it has been giving in exchange for something. This is in fact the traditional basis for legal enforceability of promises in our legal system. A bare promise - a one-way promise where, for example, I simply promise to give you my goat - is not legally enforceable. (But remember, if it is put in a deed then it can be legally enforced.) Contrast the bare promise - usually called a gift promise by lawyers - with an exchange promise: I will give you my goat in exchange for you giving me a pig. We are talking about promises here. So the deal is I promise to deliver my goat to you, say, next Wednesday if you promise to deliver the pig on the same day. There is an exchange of promises. This is what the doctrine of consideration is all about. We will spend some time examining the doctrine of consideration which has some somewhat mysterious aspects to it.

That is all interesting, but why then have several people been told by legal representatives that a contract on the sale of a dog, promising the return of the dog if it ever needs re-homing, is not enforceable?

Can I ask, are you studying law or practising it?

If you are practising, would you be prepared to write a legally enforceable contract for people and defend that contract if is challenged?

[~Anne~]

This isnt any rescue group this is one of the biggest in Sa , big money bigger lawyers .

Is it a 'rescue'in the terms we would normally use in rescue, or a welfare org/shelter such as the AWL or RSPCA?

[AmandaJ]

Anne my law studies were a part of my accounting studies. From what I understand (and have seen of many of the contracts used by breeders) they don't include the full requirements to ensure a "promise" in a contract stands up. They need to have consideration for the promise or be signed under seal or deed. Until a few years ago the laws realting to promises in contracts was only ever used in what they call a shield defence but Australian law recognised it as a Sword defence placing Australian Law ahead of British law in that regard. If you take a look at some of the contracts used in the USA now they include the requirement for consideration for promises and also include penalty clauses (financial) and the AKC will also strike off any dog whos owner breaches the contracts - they could not do that if it didn't hold up in court. There are many examples where the "promise" has held up in court with regard to contracts in business - which are still written with the same contract law requirements. When it comes to "free enjoyment of property" - if a person is going to surrender an animal - they clearly don't want it any longer - so where is their right in that regard being hurt. A breeder who is not interested in having the animal returned rather than going to a shelter would simply not include the clause. You could always write the promise as "the breeder will be provided with the opportunity to take back the animal under the following conditions: .... " Just another one - in Australia we actually don't have any rights like they do in the USA - we have no "bill of rights".

[bullmighty]

This isnt any rescue group this is one of the biggest in Sa , big money bigger lawyers .

Is it a 'rescue'in the terms we would normally use in rescue, or a welfare org/shelter such as the AWL or RSPCA?

organisation .

[~Anne~]

Thanks Amanda.

Still, all in all, who has the money to battle people in court over the re-homing of a dog you have sold them. Even *if* we were to determine that a contract was legally enforceable, the strength of the enforcement depends on how much money and time you have to take the preson to court.

[AmandaJ]

Thanks Amanda.

Still, all in all, who has the money to battle people in court over the re-homing of a dog you have sold them. Even *if* we were to determine that a contract was legally enforceable, the strength of the enforcement depends on how much money and time you have to take the preson to court.

If you put the punative damages clause at less than $10k (in SA) then you could fight it in Magistrates small claims court - no lawyers are permitted to be present. So long as you have the properly written contract and argued it correctly there is no reason it will not be upheld. Of course if the dog has already gone then it's to late for that dog but it does put people on notice that they can't get away with it in future.

[Steve]

Well all I can say is if it is even remotely possible that I would have to be directed on what I do with my dog even if I believe it is no longer in its best interest I would never buy a dog and agree to any such contract.

I am a breeder and hope that my puppy buyers would honour my wishes and come to me first but I am also an owner and I believe its illogical and unreasonable.

[Steve]

Thanks Amanda.

Still, all in all, who has the money to battle people in court over the re-homing of a dog you have sold them. Even *if* we were to determine that a contract was legally enforceable, the strength of the enforcement depends on how much money and time you have to take the preson to court.

If you put the punative damages clause at less than $10k (in SA) then you could fight it in Magistrates small claims court - no lawyers are permitted to be present. So long as you have the properly written contract and argued it correctly there is no reason it will not be upheld. Of course if the dog has already gone then it's to late for that dog but it does put people on notice that they can't get away with it in future.

Not really equitable though is it ? How is this fair to the buyer? Do they get a reduced price based on the fact that they agree to taking the dog back to the breeder? Therefore if they default the breeder can ask for the higher price but you cant honestly expect me to believe that someone would have to pay some money to the breeder because they decide to give the dog away or sell it to someone else rather than take up the breeders offer .

Im not convinced and would want to hear this from someone who is qualified in property and contract law.

[megan_]

Well all I can say is if it is even remotely possible that I would have to be directed on what I do with my dog even if I believe it is no longer in its best interest I would never buy a dog and agree to any such contract.

I am a breeder and hope that my puppy buyers would honour my wishes and come to me first but I am also an owner and I believe its illogical and unreasonable.

Agree. I wonder if the People who disagree with this all have wills that say that all their dogs go back to their individual breeders, even if that means splitting them up, sending old dogs interstate etc. I know that certainly won't be happening with my dogs - no one knows my dogs better than me and I've made decisions based on their best interests.

[Steve]

However, I have to say this.If someone asks me before they decide to purchase one of my puppies what my procedures are if they can no longer keep the dog - and more and more often they do - because they are being told a breeder who is willing to take their own back is a good breeder and this is part of the reason they decide to purchase one of my puppies it sucks if when the tme comes that they do all they can to avoid me finding out they dont want it any more. Ive had two incidences of my dogs being handed over to a rescue group - one beagle one Maremma .one lied to the rescue and told them she had contacted me and I hadnt returned messages.

Do I want to punish them or punish the rescue groups who are handed the dog for somehow aiding and abetting them breaking their contract they had with me ? No. That in my opinion is illogical.

Do I want to get some kind of restitution because if they had told me at the time of sale they would hand over my dogs to Beagle Rescue or Maremma Rescue and deliberately avoid speaking with me first rather than what they agreed to in writing - which was to come to me first ?

No. Im sad because in one case at least I believe I could have helped them avoid handing the dog in AND Id really like to tell them what I think of them but to take it further is not Iin my opinion logical.

In both my cases beagle Rescue Victoria and Andrea found new homes for them probably quicker than I could have and they both now live happily ever after with people who love them. Thats all I want for them so the fact that I was kept out of the loop until the deed was done is annoying but if they had dumped them at a kill pound rather than these two reputable rescue groups Im not sure logic would still be part of my reaction.

[Tapua]

However, I have to say this.If someone asks me before they decide to purchase one of my puppies what my procedures are if they can no longer keep the dog - and more and more often they do - because they are being told a breeder who is willing to take their own back is a good breeder and this is part of the reason they decide to purchase one of my puppies it sucks if when the tme comes that they do all they can to avoid me finding out they dont want it any more. Ive had two incidences of my dogs being handed over to a rescue group - one beagle one Maremma .one lied to the rescue and told them she had contacted me and I hadnt returned messages.

Do I want to punish them or punish the rescue groups who are handed the dog for somehow aiding and abetting them breaking their contract they had with me ? No. That in my opinion is illogical.

Do I want to get some kind of restitution because if they had told me at the time of sale they would hand over my dogs to Beagle Rescue or Maremma Rescue and deliberately avoid speaking with me first rather than what they agreed to in writing - which was to come to me first ?

No. Im sad because in one case at least I believe I could have helped them avoid handing the dog in AND Id really like to tell them what I think of them but to take it further is not Iin my opinion logical.

In both my cases beagle Rescue Victoria and Andrea found new homes for them probably quicker than I could have and they both now live happily ever after with people who love them. Thats all I want for them so the fact that I was kept out of the loop until the deed was done is annoying but if they had dumped them at a kill pound rather than these two reputable rescue groups Im not sure logic would still be part of my reaction.

So Julie just wondering - I used to do contract now I accept I have next to zero control once pup has left the premises - not my property any more. Nowadays if I am wanting control over a certain pup - I dont sell it - simple.

Now my main question is - would it be appropriate to say to the new buyer something like

'If at sometime in the future you need to re-home you dog and cannot find a suitable home please contact me first option to take him/her back or find a good home for/him her'. Or is that too open ?