Dogs Sales And The Law

[Wundahoo]

I have a problem with a owner of one of my pups,which has developed slipping patella problems at ten month, I referred

to my Vet but owner went elsewhere, she has had the dog operated on,vet fees 5000.00.( my vet quoted 1700.00.

Owner wants me to refund her the price of the puppy, to .help with charges.

But will it end there?

Consumer Protection says owner is entitled to Refund, Repair or Replace,which I am prepared to do,but I should be able to claim the dog back.

What do people think, I would appreciate import

Unfortunately for breeders, the consumer laws in W.A. are very much to the advantage of the owner of the dog. The right of choice for repair, refund or replace sits entirely with the purchaser of the dog and the breeder can only hope that the person concerned is reasonable and fair-minded. The owner of the dog can choose which vet the dog sees and whether or not a second opinion is sought. If the owner is offered a refund with the requirement that the dog is returned to the breeder, they have the right to refuse the offer and then they usually go for the repair option which is often far more expensive than a refund of purchase price.

Is this recent ? Consumer law is Australian consumer law now and all shoppers in Australia have the same rights with all sellers having the same responsibility.

Based on this no one could ever afford to breed dogs - if people can just decide they want to have the dog repaired at enormous cost and the breeder has no choice but to get the bill! No wonder breeders sell puppies to pet shops!

The purchaser has the right to choose repair, replace or refund if the problem is deemed to be major. If the problem is deemed to be minor then the breeder can offer a solution to the issue, which the purchaser is not required to accept.

DOCEP considers a "major" problem to be in part, one which would prevent the purchaser from buying the animal if they had known the nature and extent of the problem prior to purchase.

Of course this is very subjective and open to interpretation.

If the repair is at "enormous cost" then I presume this would be deemed a major problem and the owner would have the right to choose what was done, where it was done and by whom.

[WreckitWhippet]

I don't think they can legally take the dog back anyway, can they?

Why cause them, and yourself, more grief.

Consumers want more these days. Breeders are going to have to step up.

If "consumers" are going to go down that road and demand of "breeders" what they would of a department store, then I'm sorry but "breeders" are well within their rights to ask for the "item" back. No shop gives a refund and then tells you to keep the item.

[Salukifan]

Why wouldn't the surgery have been necessary? That implies that the vet potentially operated on the pup needlessly and the question would have to be asked 'why would he be so incompetent to allow a pup to undergo major surgery for no reason'.

I agree with StephM, and based on what Steve has said, unless the contract was explained (assuming there is one) I think both sides are in a shitty situation. The buyer has had to go through the stress of expensive surgery on a puppy that hasn't even reached adulthood and the breeder has the risk sending the wrong message about her breeding program and having to pay up money.

I still stand by my earlier opinion - I'd compensate them financially and move on. Use this one as a lesson, not a reason to start war.

Speaking from personal experience, because maturity and full muscle development can see the patella held firmly in place. I'd not want this operation performed on a pup so young unless we were talking about severe luxation. I have to say that the price paid is astronomical.

But unless we know the grade of the patella luxation, who's to know?

I would refund the purchase price of the pup, chalk it up to experience and move on.

[Wundahoo]

Why wouldn't the surgery have been necessary? That implies that the vet potentially operated on the pup needlessly and the question would have to be asked 'why would he be so incompetent to allow a pup to undergo major surgery for no reason'.

I agree with StephM, and based on what Steve has said, unless the contract was explained (assuming there is one) I think both sides are in a shitty situation. The buyer has had to go through the stress of expensive surgery on a puppy that hasn't even reached adulthood and the breeder has the risk sending the wrong message about her breeding program and having to pay up money.

I still stand by my earlier opinion - I'd compensate them financially and move on. Use this one as a lesson, not a reason to start war.

Speaking from personal experience, because maturity and full muscle development can see the patella held firmly in place. I'd not want this operation performed on a pup so young unless we were talking about severe luxation. I have to say that the price paid is astronomical.

But unless we know the grade of the patella luxation, who's to know?

I would refund the purchase price of the pup, chalk it up to experience and move on.

Some dogs have a very shallow trochlear groove and low tibial tuberosity which means that the valley that the patella is supposed to sit in is more like a plain and no amount of muscling will hold the patella in place, particularly if there has been damage to the patella ligament.

This usually results in a grade 3 or 4 luxation and these need to be repaired surgically.

It's possiblle to do a soft tissue procedure called an imbrication where the tissue over the patella and knee joint is tucked and tightened. The hope is that in young dogs this will hold the patella in place while the dog is still growing and the groove will deepen with the pressure of the patella on it. This surgery is not very difficult and is a fairly quick operation so is usually at the lower end of cost, but also doesnt always work. It's highly dependent on the dog still having enough growing time to make a difference to the contours of the bone.

The other procedures are a trochleoplasty where the groove is deepened by cutting out a wedge of bone, and then a tibial tuberosity transposition, which involves shifting the peak of bone and keeping it in place with a metal pin. These surgeries are major and often quite expensive but give the best result.

In regard to the OP's dog, at 10 months it's unlikely that there would be sufficient growth left for a simple imbrication to work and it does sound as though the TTT and trochleoplasty procedures were done, hence the price of the surgery. These two procedures are complicated and usually done by specialist vets although some well experienced general practice vets will do them.

I agree with you Haredown in that I would refund the purchase price and get out of there quick smart. The owner obviously thinks highly of the dog and has been prepared to spend extra money on making sure that the dog is comfortable and healthy.

Refund with grace and make a dignified exit ! Be thankful that the owner was willing to take the refund, because they have the right to ask for full payment of the repair.

[Jumabaar]

Refund them the purchase price, take the dog back and treat it in the way you see fit as the breeder. There's is no way that someone who ignored my wishes to use my own vet would be refunded and get to keep the dog.

So you lose the right to use your own trusted vet if a problem arises when you buy a dog from you as a breeder?

Seems slightly unfair to me and I hope that's made known at time of purchase... It would certainly impact my decision.

If you want warranty repairs done and paid for by the manufacturer you can't take your purchase to just anyone, you have to take it to an 'approved repairer' who is approved by the manufacturer to do warranty repairs. And you need to have it approved under warranty before you get the repairs done. If dogs are to come under the same consumer laws, why wouldn't the same apply?

That is assuming all vets are created equal. In searching for a vet to take my bitches X-rays I have been recommended a vet by three people that I wouldnt touch with a 30 foot barge pole, I am sure this is the same vet that breeders would recommend to their puppy buyers and I think they should have the right to go to someone more competent! Why should a puppy owner have to go to a vet if they are not confident with them- if a mechanic stuffs up the car it can be replaced for new or be repaired again, you cant necessarily do this with a dog.........

Not sure what should be done in this situation- rock and a hard place really we are talking about dogs and it would be good if we had legislation that stopped treating them like a microwave.

Edited October 22, 2013 by Jumabaar

[WreckitWhippet]

Refund them the purchase price, take the dog back and treat it in the way you see fit as the breeder. There's is no way that someone who ignored my wishes to use my own vet would be refunded and get to keep the dog.

So you lose the right to use your own trusted vet if a problem arises when you buy a dog from you as a breeder?

Seems slightly unfair to me and I hope that's made known at time of purchase... It would certainly impact my decision.

If you want warranty repairs done and paid for by the manufacturer you can't take your purchase to just anyone, you have to take it to an 'approved repairer' who is approved by the manufacturer to do warranty repairs. And you need to have it approved under warranty before you get the repairs done. If dogs are to come under the same consumer laws, why wouldn't the same apply?

That is assuming all vets are created equal. In searching for a vet to take my bitches X-rays I have been recommended a vet by three people that I wouldnt touch with a 30 foot barge pole, I am sure this is the same vet that breeders would recommend to their puppy buyers and I think they should have the right to go to someone more competent! Why should a puppy owner have to go to a vet if they are not confident with them- if a mechanic stuffs up the car it can be replaced for new or be repaired again, you cant necessarily do this with a dog.........

Not sure what should be done in this situation- rock and a hard place really we are talking about dogs and it would be good if we had legislation that stopped treating them like a microwave.

either that of the ATO recognises us "hobby breeders" as a business and we set about writing off our expenses.

We are expected to behave all "business like " according to consumer law, yet we are afforded none of the perks that come with being a business

[ozziemom]

Thanks for all your answers,

I can understand the delimma but but as a breeder where does it end does the owner come back in a few years time with an arthrtic problems and then want more money.

Cost of pup was a thousand dollars, as I said it is not so much monies it what comes after this could efect anyone who is a breeder whether it is dogs ,cats horses guinea pigss.

I guess the Consumer protection says that you have to take the emotion out of it and treat as you would a Fridge or washing machine.

Slipping Patella is in all small breeds according to Google it is only by an accident or damage of some kind it can happen , ( not proven as an inheridted disease).

My Vet said that it should not have been operated on because it was too young.

I am willing to refund the price of the pup, but is that admitting fault, no-one likes big vet bills and I am sorry for her but I did plead with her to see my vet whom I have dealt with for over thirty years, she chose to go elswhere.

So the solution: Shu-tup and pay up and hope it doesn't go any futher.

Get the owner to sign a document to the effect that I wiil not be up for any more claims.

Shurely some in the Dog world would have face this problem

[Wundahoo]

Thanks for all your answers,

I can understand the delimma but but as a breeder where does it end does the owner come back in a few years time with an arthrtic problems and then want more money.

Cost of pup was a thousand dollars, as I said it is not so much monies it what comes after this could efect anyone who is a breeder whether it is dogs ,cats horses guinea pigss.

I guess the Consumer protection says that you have to take the emotion out of it and treat as you would a Fridge or washing machine.

Slipping Patella is in all small breeds according to Google it is only by an accident or damage of some kind it can happen , ( not proven as an inheridted disease).

My Vet said that it should not have been operated on because it was too young.

I am willing to refund the price of the pup, but is that admitting fault, no-one likes big vet bills and I am sorry for her but I did plead with her to see my vet whom I have dealt with for over thirty years, she chose to go elswhere.

So the solution: Shu-tup and pay up and hope it doesn't go any futher.

Get the owner to sign a document to the effect that I wiil not be up for any more claims.

Shurely some in the Dog world would have face this problem

As I said in an earlier post, if you offer her a full purchase price refund and she accepts it then she has no way to come back at a later date for anything. If you do that then essentially she has got a free dog and you have discharged any obligation that you might have to her, either now or in the future. I dont think that you need to get her to sign a waiver if you refund her money, but you should probably get a document made that states the money is a full purchase price refund given as a gesture of good-will but not as an acknowledgement of fault on your behalf. You should sign it and so should she and get a witness to sign it as well.

Many pups under 10 months of age have surgeries for patella problems. The imbrication surgery is the most common in very young ones because it's quick and easy and there is the best chance of getting growth to deepen the groove. Luxating patella is thought to have a genetic basis to it but the mode of inheritance isnt known.... just like with HD it's multifactorial and polygenic. There is an environmental aspect to the problem as well as being a conformational issue.

[Steve]

NSW according to the codes of practice for pet shops and breeders.

Guarantees

10.1.5 If within 3 days an animal (except a fish) is not acceptable to the purchaser

for any reason, the pet shop proprietor is required to take the animal back

and refund 50% of the purchase price of the animal.

10.1.6 The guarantee required by Clause 10.1.5 must be displayed in a prominent

position on the wall of the shop.

10.1.7 If an animal dies or is euthanased as a result of a disease that is traceable

to the point of sale and is verified by an appropriate authority such as a

veterinarian, the person in charge will refund the purchase price or offer a

replacement animal with the same guarantee.

10.2.4 If within 7 days an animal is not acceptable to the purchaser for

health reasons, excluding injury, and the complaint is supported by a

veterinarian, the pet shop proprietor and the owner should negotiate in

good faith to achieve an equitable outcome.

Victoria

Guarantee

If an animal is unacceptable to a new owner because of health, or other reasons that are supported by a statement from a veterinarian, within seven days of purchase, the establishment must take the animal back and refund all monies or offer a replacement animal of the same breed and comparable quality with the same guarantee. If an animal is returned within three days for any other reason, the establishment will refund 75% of the purchase price or offer a replacement animal with the same guarantee. If the animal dies or is euthanased from a disease that is traceable to the point of sale, the establishment must refund the purchase price or offer a replacement animal with the same guarantee.

[~Anne~]

Perhaps this will help (applicable to WA);

http://www.commerce.wa.gov.au/ConsumerProtection/PDF/Publications/A_consumers_guide_to_buying_a_pet.pdf

I can't cut and paste from it but page 10 may assist. This doc is very light with detail though.

Edited October 22, 2013 by ~Anne~

[Steve]

Page 10. If there is a problem – a consumer’s right

to a remedy

If you have purchased a pet and something goes wrong,

you may have rights against the seller if they failed to

meet one or more of the consumer guarantees.

Generally you are not entitled to a remedy if you change

your mind about a purchase or if the problem is due to

something beyond the seller’s control. However, if the

seller provided an ‘express’ warranty or an additional

promise about the quality, condition, performance or

characteristics of the item purchased, they must uphold

that guarantee.

Your entitled remedy will depend on the issue and

whether the problem can be classified as major or minor.

Effectively, a major problem is when you wouldn’t have

bought the pet if you had known the nature and extent

of the problem prior to purchase; for example, an animal

has a terminal or serious health issue. In this case, the

consumer has the right to choose which remedy the

seller will provide. This will either be to:

– have the problem with your pet corrected

for example, with veterinary treatment

and/or medication;

– return your pet to the seller and have it

replaced with another one; or

– return your pet to the seller and have your

money refunded.

When the problem is minor, the seller can choose

which remedy they will provide.

It is recommended that you attempt to negotiate an

outcome that both you and the seller can agree to.

If there continues to be a disagreement, Consumer

Protection can provide advice and help you resolve

the dispute.

I would say if the dog is clear of health issues at time of sale and something developed at a later date especially something which is polygenic then that is out of the breeder's control and there can be no claim. Note also they don't get to have a replacement or refund if they keep the dog.

[Christina]

Thanks for all your answers,

Slipping Patella is in all small breeds according to Google it is only by an accident or damage of some kind it can happen , ( not proven as an inheridted disease).

Oh dear. You can't just use an opinion from a Google search & believe it.

You need to do some serious research about this & get as much background on your lines as you can. Unfortunately this is a thing it is hard to get reliable background info on a lot of the time.

Its a nightmare problem in small breeds & if every breeder who had a dog with a slight, even grade 1 patella stopped breeding from it, or stopped if puppies were produced who have this problem we would be a long way towards eliminating it to a more acceptable degree.

Yes it can be caused by injury & will usually be slight but when an 8 week old pup or a fairly young dog has grade 3 & 4 one has to look at the genetics.

A dog that is 5 years old & recently develops this condition is likely to have had an accident that may have even have gone unnoticed.

Just because something cannot be tested for it does not mean it is not genetic.

[Wundahoo]

Page 10. If there is a problem – a consumer’s right

to a remedy

If you have purchased a pet and something goes wrong,

you may have rights against the seller if they failed to

meet one or more of the consumer guarantees.

Generally you are not entitled to a remedy if you change

your mind about a purchase or if the problem is due to

something beyond the seller’s control. However, if the

seller provided an ‘express’ warranty or an additional

promise about the quality, condition, performance or

characteristics of the item purchased, they must uphold

that guarantee.

Your entitled remedy will depend on the issue and

whether the problem can be classified as major or minor.

Effectively, a major problem is when you wouldn’t have

bought the pet if you had known the nature and extent

of the problem prior to purchase; for example, an animal

has a terminal or serious health issue. In this case, the

consumer has the right to choose which remedy the

seller will provide. This will either be to:

– have the problem with your pet corrected

for example, with veterinary treatment

and/or medication;

– return your pet to the seller and have it

replaced with another one; or

– return your pet to the seller and have your

money refunded.

When the problem is minor, the seller can choose

which remedy they will provide.

It is recommended that you attempt to negotiate an

outcome that both you and the seller can agree to.

If there continues to be a disagreement, Consumer

Protection can provide advice and help you resolve

the dispute.

I would say if the dog is clear of health issues at time of sale and something developed at a later date especially something which is polygenic then that is out of the breeder's control and there can be no claim. Note also they don't get to have a replacement or refund if they keep the dog.

No Steve, it doesnt just relate to the time of sale. It's relevant to the dog throughout its life. HD, LP, cataracts and any other disease that the dog might get which is known to have a heritable influence is considered to be a "major" problem that the breeder may need to compensate the owner for.

I live in W.A. and I know the stance that DOCEP takes. As a breeder I believe that it's important to know how we are perceived should there be a claim or complaint made to DOCEP and on what grounds we might be liable to compensate an owner.

This issue has been recently tested in regard to pure bred registered dogs and the breeders have been required to compensate the owners. The problems were not present when the dogs were sold but developed over time.

Yes, if the purchaser takes the option of a refund or replacement they dont get to keep the dog as far as the law is concerned. This is why most owners will go down the road of repair !! They get to keep the dog AND at the very least the breeder has to contribute, if not pay entirely for the veterinary costs.

I dont remember that there was any suggestion that under the law, the owner could have a refund or replacement and get to keep the dog.

Several of us have suggested to the OP that they simply refund the purchase price and leave it at that. Let the owner keep the dog. The dog is still the owners to do with what they wish but they have no further way of asking for compensation or payment should any other matter arise or there be any further costs in relation to the original issue.

I always say that the sign of a good company is how it handles its problems and I think that the same can be said for breeders. I would much rather just give an unhappy owner their money back and let them keep their dog...... then they dont have much more to whinge about and cant whinge about anything esle that might arise in the future.

Edited October 22, 2013 by Wundahoo

[kelpiecuddles]

According to the information provided by Steve as I understand it unless the condition is traceable(and therefore a genetic link is PROVEN) and the animal dies or is euthinased as a result you don't have to do anything. Good will states that you may choose to refund the purchase price.

Personally I think the number of people assuming that it's OK to come back to breeders many months or even years later expecting enormous amounts of money for things that may only have a tenuous genetic link is ridiculous, I think it may be getting to the point that breeders need to offer a similar guarantee to what pet shops currently offer that basically absolves them of responsibility after a certain time frame, my seem harsh but people seem to be getting more and more 'entitled' every year

[Salukifan]

Slipping Patella is in all small breeds according to Google it is only by an accident or damage of some kind it can happen , ( not proven as an inheridted disease).

My Vet said that it should not have been operated on because it was too young.

I am willing to refund the price of the pup, but is that admitting fault, no-one likes big vet bills and I am sorry for her but I did plead with her to see my vet whom I have dealt with for over thirty years, she chose to go elswhere.

So the solution: Shu-tup and pay up and hope it doesn't go any futher.

Get the owner to sign a document to the effect that I wiil not be up for any more claims.

Shurely some in the Dog world would have face this problem

That is utter rubbish. There is definitely a genetic component because it is a STRUCTURAL issue.

[Wundahoo]

According to the information provided by Steve as I understand it unless the condition is traceable(and therefore a genetic link is PROVEN) and the animal dies or is euthinased as a result you don't have to do anything. Good will states that you may choose to refund the purchase price.

Personally I think the number of people assuming that it's OK to come back to breeders many months or even years later expecting enormous amounts of money for things that may only have a tenuous genetic link is ridiculous, I think it may be getting to the point that breeders need to offer a similar guarantee to what pet shops currently offer that basically absolves them of responsibility after a certain time frame, my seem harsh but people seem to be getting more and more 'entitled' every year

Unfortunately this is not possible. The Australian Consumer Laws would need to be changed in order for that to happen. A breeder cannot contract out of their lawful responsibilities. If the law says that a breeder must offer certain guarantees then that is the case. Getting a purchaser to sign a contract absolving the breeder of any liability is not legal or enforceable.

Under current ACL laws, the animal does not have to die or be euthanased for the breeder to be required to compensate an owner. If the dog is sold with a pre-existing condition even if that condition has not yet manifest itself; ie is one that will become apparent with time... OR if the dog has at the time of sale, or later develops a problem that has a genetic component then the breeder may be liable to compensate the owner. If the dog is ill or incubating an illness at the time of sale then the breeder can be required to compensate the owner.

[juice]

I would be concerned that you had to google a condition in your breed to learn about it.

[Angeluca]

According to the information provided by Steve as I understand it unless the condition is traceable(and therefore a genetic link is PROVEN) and the animal dies or is euthinased as a result you don't have to do anything. Good will states that you may choose to refund the purchase price.

Personally I think the number of people assuming that it's OK to come back to breeders many months or even years later expecting enormous amounts of money for things that may only have a tenuous genetic link is ridiculous, I think it may be getting to the point that breeders need to offer a similar guarantee to what pet shops currently offer that basically absolves them of responsibility after a certain time frame, my seem harsh but people seem to be getting more and more 'entitled' every year

Unfortunately this is not possible. The Australian Consumer Laws would need to be changed in order for that to happen. A breeder cannot contract out of their lawful responsibilities. If the law says that a breeder must offer certain guarantees then that is the case. Getting a purchaser to sign a contract absolving the breeder of any liability is not legal or enforceable.

Under current ACL laws, the animal does not have to die or be euthanased for the breeder to be required to compensate an owner. If the dog is sold with a pre-existing condition even if that condition has not yet manifest itself; ie is one that will become apparent with time... OR if the dog has at the time of sale, or later develops a problem that has a genetic component then the breeder may be liable to compensate the owner. If the dog is ill or incubating an illness at the time of sale then the breeder can be required to compensate the owner.

Can you quote the law your stating and not just from experience,

Law can be tricky as it can be a basic yet vague in terminology, it is up to the lawyers to interpret those laws to convince the judge in favor of their client, the vaguer the written law the more open to interpretation.

[Steve]

Surely if the breeder explains at point of sale that its not possible to guarantee these things way into the future due to it being a live animal the owner has a choice in whether they still want to buy it and if they want to hold out for a breeder who gives a different guarantee its their right to do so. These things are beyond the breeders control so why is that not " you are not entitled to a remedy if you change your mind about a purchase or if the problem is due to something beyond the seller’s control. How is it possible for the seller - the breeder to have any control over these things especially when they are known to be impacted by things other than genetics?

As long as we dont " provide an ‘express’ warranty or an additional promise about the quality, condition, performance or characteristics of the item purchased' then the guarantee which is mandatory in Victoria and NSW via the codes of practice should be sufficient to comply with consumer law - Australia wide.

[Steve]

In the case of the OP its pretty obvious she is not very experienced and has not explained why she would be more responsible for a patella problem than the owner - which is the first thing you need to clarify. Before you work out what you need to do you have to know whether it really is something you should be accountable for. You need to see written vet reports and have your vet look at them, you need to see accounts and don't take the owners word for it all - then if you can see that its something you should be holding up your hand for and your vet advises you that its your blue - do what you have to do quickly and nicely.