Dogs Sales And The Law

[kelpiecuddles]

I am not saying that they should be completely absolved of responsibility, but that the general public seems to of the belief that breeders have more legal responsibilities than they actually do. Realistically if someone comes up to you with their 12 month old dog and tells you is has LP or HD then as a breeder you would be fully within your right to request that they provide testing that proves that their particular dogs condition has a genetic basis, if it does then fair enough you refund the money but you aren't obliged to pay for anything just because a puppy purchaser or a random vet 'thinks' it's a genetic issue.

Breeders rights are exactly the same as those of pet stores, once the puppy buyer walks out of the store and gets past those first few days then it's only the sellers problem is it can be provably linked back to before the point of sale. Making this clear to buyers so that they understand that if they feed their dog poorly or it is injured and develops an issue as a result that may have a genetic component but may also be caused by environmental factors it's not automatically the breeders 'fault'.

Edited October 22, 2013 by kelpiecuddles

[kelpiecuddles]

Under current ACL laws, the animal does not have to die or be euthanased for the breeder to be required to compensate an owner.

Apologies, I may have misinterpreted the info provided by 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 additionalpromise 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.

I think this is the issue, the general public seems to hold the opinion of breeders that they are amazing people who can magically provide the perfect dog who will never have any health issues. It probably comes down to the fact that when we tell people why ethical breeders who health test are a better option than BYBs we do tend to make a bit more of the fact that health testing means dogs are less prone to issues, etc. I think the issue there is that Joe Public just hears what they want to hear which is that if they spend the extra for a pup from tested parents, etc they will get their perfect pup and never have any issues. I really do think that a lot of people need things explicitly spelled out for them. When pet shops sell an animal like a pup they make the buyer sign a guarantee that details exactly what they are liable for by law and I think maybe this is what is needed for breeders as well.

[Angeluca]

I did a quick search to find this law within the act. All I could find in a that vague brochure which is written in the purchaser's point of view and has no definition on terminology. At one point it says an animal must survive past a length of time.

What length of time giants are lucky to last to 10-15 yrs, small breeds last 15 + on good health

Cats last can til late 20's

It does not specify if the repairs are in full or to the amount of the purchase price or price at that time to replace which is what most products are Valued in repairs. Past that it is at owners discretion. These things matter when the situation arises.

Then we come back to what Steve is saying, Guilt has to be proven, and if a breeder has done all tests, and bred from stock not know specifically for the illness then that would be grounds for all means possible to prevent.

Any one wanting to object to this please provide Actual written law, or provide a case study where the breeder has been proven to be at fault after testing and stock heritage.

Maybe these are cases where a breeder has just given in and paid refunds without returns or medical expenses. Or have been given bad advice by lawyers (which could be cause they can't be bothered doing the research and fighting, or unfamiliar with the law itself). Either way Unless a court has ordered that a breeder who has done everything possible and can prove that (which shouldn't be hard if they have done), pay and be liable for everything, It's not law.

Our country is based on the idea of proven guilty, (which would mean in a dog, not done testing on parents known for certain common illnesses, or bred from affected dogs or known lines of many affected dogs).

I know most breeders don't want the court proceedings and try to come to some agreement or give in to demands, bad for reps or whatever, but just because the paid up doesn't make them guilty or make it law.

Maybe more of Breeders should stand up and not be bullied. Cause that's exactly what it is. Puppy owners and lawyers bulling breeders with legal letters and threats.

ACL is Australian wide so WA should adhere to what the rest of the country is doing otherwise it's grounds for an appeal. And i know that was a bit scattered and in badly written and constructed but it's late and i'm tired and typing whatever crossed my mind at the time.

[~Anne~]

The link to the actual legislation is here:

http://www.consumerlaw.gov.au/content/Content.aspx?doc=the_acl/legislation.htm

This is a little more on the pet issue;

http://www.commerce.wa.gov.au/consumerprotection/content/bettertrading/Issue/article_004.html

[Steve]

If we all stop telling people they can be sure our dogs will never get genetic diseases and be honest then If you explain to the Purchaser that any living creature can become sick from something that may have a genetic component no matter how hard we try to prevent it saying its something you cant guarantee in writing prior to the sale then they will be the ones carrying the risk because they are aware of the risks prior to sale and still agree to purchase knowing there is no guarantee for this. If all genetic diseases were treated in the same way then Breeders would have some protection from the financial consequences of selling dogs that are not of "merchantable quality" or fit for the purpose they were sold far into the future. The only reason a breeder has to be more accountable far into the future for the dogs they breed than a pet shop is because they tell buyers that they will guarantee this and the reality is they cant.

All we CAN do is do everything we know to reduce the risks and tell the truth when we sell our pups - that there is no guarantee that the dog will not develop some condition which may have a genetic component throughout its lifetime,that the pup is fit and healthy with no signs of disease at time of sale and if something happens related to point of sale for a limited period refunds and expenses will be covered as they should be and have to be according to law. Consumer law cant make you guarantee something you are not able to guarantee as long as you are up front about the fact that you cant guarantee it.

The concept that someone can refuse a refund, refuse to have vet work carried out by a breeder approved repairer or send it home to the breeder for it to be repaired by the breeder's repairer and instead clock up massive bills expecting the breeder to pay months or years down the track especially when there are potentially other things which may have caused the problem is ridiculous but if we say or imply we will guarantee a pup against genetic disorders for life we ask for it.Unless we put in writing that we are not guaranteeing such things prior to sale they can say we said so or implied it because we are registered breeders and that complicates it more.

There is so much peer pressure and outside push for breeders to make these guarantees to be seen to be a good breeder that we have missed the point .When something like this happens the owner is devastated and if a breeder guarantees it they never even contemplate the risk or what they may need to do to reduce the risk because why would a breeder guarantee it if there was any doubt that the dog would not remain healthy and never develop a disease? They buy the pup with the expectation that these are things they will never see or ever have to think about and its not just a money issue. Why is this happening? Its not just because people are more aware and like to sue etc it's also because breeders are making bigger and more unexplained claims than they used to.

By all means tell them why you think the dog wont develop a problem and what you have done to prevent them, guarantee them for 14 days for refunds and expenses and advise them to get insurance because state clearly what comes next is out of your hands and your control. Don't pay out money until you are sure it is something you need to be responsible for and pay for - rely on what your vet tells you after they have seen the reports. If your vet says it is genetic and you have guaranteed there will be no genetic issues or if you havent explained you cant prior to sale in writing - you're it - pay up.

In the case of the OP something you did or did not do made these puppy buyers believe that if their dog developed this condition that you would compensate them because they have asked you to cover it - if you had been clear in writing prior to sale that there was no guarantee on this they would have known this and it wouldnt be an issue - so pay the refund and dont demand return of the pup for them to get it.

Next time you breed a litter provide a written contract to say that you cannot guarantee such things after an X period of time and have them sign that they have read this.

[espinay2]

I provided a link earlier which sets out the 'new' Australia wide consumer law...

[Angeluca]

this thread concerns me deeply I have my second litter due in a few weeks.

The consumer law regarding pets is vague, and states in it's brochure it's not like buying other goods. My guarantee was if one of my pups pull up with an illness and it is proven to be genetic that I would refund the purchase price and they would keep the animal. I specifically mention that HD and ED can be hereditary that I have done everything I can and I then state certain things they can do to prevent environmental, but the is all Verbal.

Going by that brochure it does not specify that it would enough, it says 'pay medical bills' which we know most genetic illnesses run into $2000 + and can be ongoing. I don't even sell my pups at $1500.

I am going to ring the consumer law agency and get some age and price limits on compensation claims. Then write up an agreement to as Steve says get it signed as sighted and provide them a copy. at the time they sign the limited register form.

Another question I am going to ask is if I provide the 6 week pet insurance does that provide me with some protection against compensation claims.

If I come back with anything interesting or of use I will let yous know.

[dogmatic]

There was a recent case in the ACT where a puppy was found to have contracted parvo before it was sold, was subsequently treated and died. The breeder was liable for the vet bills and the costs of purchase.

http://www.austlii.edu.au/au/cases/act/ACAT/2013/35.html

The circumstances of that case are very different to what is being discussed here, but the case does mention that the mere repayment by the breeder of the cost of the puppy did not terminate the contractual obligations of the breeder.

It all boils down to who said/did what when and where.

On another note, the Orthopedic Foundation for Animal in the USA states that "Patellar luxation should be considered an inherited disease."

http://www.offa.org/pl_overview.html

[Wundahoo]

this thread concerns me deeply I have my second litter due in a few weeks.

The consumer law regarding pets is vague, and states in it's brochure it's not like buying other goods. My guarantee was if one of my pups pull up with an illness and it is proven to be genetic that I would refund the purchase price and they would keep the animal. I specifically mention that HD and ED can be hereditary that I have done everything I can and I then state certain things they can do to prevent environmental, but the is all Verbal.

Going by that brochure it does not specify that it would enough, it says 'pay medical bills' which we know most genetic illnesses run into $2000 + and can be ongoing. I don't even sell my pups at $1500.

I am going to ring the consumer law agency and get some age and price limits on compensation claims. Then write up an agreement to as Steve says get it signed as sighted and provide them a copy. at the time they sign the limited register form.

Another question I am going to ask is if I provide the 6 week pet insurance does that provide me with some protection against compensation claims.

If I come back with anything interesting or of use I will let yous know.

Pet insurance policies vary. Some dont cover inherited or genetically driven disease or issues at all, others do, but some have a clause which states that they will pay the owner but then MAY seek their costs from the party that they determine to be "responsible" for the condition ie this can be the breeder !

It's not possible for you to "contract out" of your legal obligations by getting an owner to sign a waiver.

Even if they are made aware of the breed related issues and that it IS possible that the problem may occur in the dog that they purchase, they can still make a claim through ACL. Really almost anything can be challenged.

Because the regulations that drive the laws are not particularly specific when it comes to dogs it leaves us, as breeders, in a difficult position.

One of the key phrases is in relation to problems that would prevent a purchaser from buying the animal if they had known about the nature and extent of the problem prior to purchase.

This is a very open statement and of course is extremely dependant upon the perceptions of the individual purchaser.

We are damned if we do, and damned if we dont !

I think that you will find that there are no set age and price limits as far as ACL is concerned. If a complaint is lodged each case is looked at individually and sometimes it depends on whether or not there have been other reports lodged against a breeder that could influence the opinion of the staff who administer and apply ACL. I think that if a case goes to mediation and negotiation and it seems that the problem is a one-off and the breeder has been reasonable in their attempts to prevent the problem and has acted towards the purchaser in a fair way, then the recommendations for compensation under ACL will be reasonable. If there appears to be a common thread and a good sized file on a breeder for the same or similar issues then the axe will fall harder each time !

[Puppoochi]

I've had many buyer asking me how long do I guarantee my pups for? I say to them I can only guarantee for diseases where there are genetic tests and they are guaranteed for life.

And yes, a slipping patella can be environmental rather than genetic.

I am of the understanding that people avoid doing agility with their dogs until they reach a certain age as not to cause injury caused by excessive strain on the not fully developed body???

Most manufacturers only give 12 months guarantee on electrical goods, we as consumers are given the choice of buying an extended warranty (which has served me nicely not so long ago). This warranty acts as a kind of insurance. The onus should be on the puppy buyer to get pet insurance I think.

[Wundahoo]

I've had many buyer asking me how long do I guarantee my pups for? I say to them I can only guarantee for diseases where there are genetic tests and they are guaranteed for life.

And yes, a slipping patella can be environmental rather than genetic.

I am of the understanding that people avoid doing agility with their dogs until they reach a certain age as not to cause injury caused by excessive strain on the not fully developed body???

Most manufacturers only give 12 months guarantee on electrical goods, we as consumers are given the choice of buying an extended warranty (which has served me nicely not so long ago). This warranty acts as a kind of insurance. The onus should be on the puppy buyer to get pet insurance I think.

Many insurance policies do not cover certain breed related problems and usually they will have a list of things that they dont cover. Many have limits as to how much they will pay and if a procedure exceeds their ceiling then the owner has to pay the remainder often on top of the policy excess. This might help to reduce the costs for the owner but sometimes isnt the answer.

Like all insurance companies they are in the business of making money and will always look carefully at whether they will pay out or not.

The more that people begin to use pet insurance, the more the companies will have to pay out and so the higher the premiums will become and the harder they will look at claims. Eventually they will add more and more exclusions, just like with house insurance and flood/fire cover.

It's a "Catch 22" situation.

Edited October 23, 2013 by Wundahoo

[Puppoochi]

I've had many buyer asking me how long do I guarantee my pups for? I say to them I can only guarantee for diseases where there are genetic tests and they are guaranteed for life.

And yes, a slipping patella can be environmental rather than genetic.

I am of the understanding that people avoid doing agility with their dogs until they reach a certain age as not to cause injury caused by excessive strain on the not fully developed body???

Most manufacturers only give 12 months guarantee on electrical goods, we as consumers are given the choice of buying an extended warranty (which has served me nicely not so long ago). This warranty acts as a kind of insurance. The onus should be on the puppy buyer to get pet insurance I think.

Many insurance policies do not cover certain breed related problems and usually they will have a list of things that they dont cover. Many have limits as to how much they will pay and if a procedure exceeds their ceiling then the owner has to pay the remainder often on top of the policy excess. This might help to reduce the costs for the owner but sometimes isnt the answer.

Like all insurance companies they are in the business of making money and will always look carefully at whether they will pay out or not.

The more that people begin to use pet insurance, the more the companies will have to pay out and so the higher the premiums will become and the harder they will look at claims. Eventually they will add more and more exclusions, just like with house insurance and flood/fire cover.

It's a "Catch 22" situation.

BUYER BEWARE!!!!!

If someone for instance wanted a breed that was prone to certain genetic conditions, if the breeder takes all possible care when breeding, but a pup purchased still developed a genetic condition, shouldn't the responsibility lie on the buyer, knowing they are buying a breed that may suffer a lot of health problems??? Isn't the buyer taking a risk with wanting that breed?

[Angeluca]

Ok Multiple phone calls later we have arrived at.

ACL commission is not a legal Identity and can not force payment or remedy of any kind, they can act as a mediator at negotiations failing that the person pursuing has to then engage legal advice and take the matter to court.

These things I discussed with every person I spoke to and I stopped short of An appointment with a lawyer. Most would not offer legal advice but mentioned a few things that may help. This is what I have come to based on advice and information mentioned.

The ACL is a consumer guideline and does not into specifics or circumstance, And just like any other product 'length of time' is deemed by court. Which usually refers back to contractual law.

This is where people give in and not defend themselves due to 'it not being worth it' or not knowing their rights.

Contractual Law does not give any purchaser endless guarantee. Nor is it solely sided with the purchaser.

If the matter is taken to court then the pursuer is the one who has to prove their case, and the defendant has to prove only the claims against him false.

There are steps to protect/defend breeders, one being Full disclosure, of know problems in the breed, what is regarded as needing test and these test results copied and supplied. (This should be standard) Most of the time this is verbalized. This needs to be written up as 'You have supplied information about breed problems, and verbally explained in detail your efforts and the possibilities of occurrence despite your best effort, and the possible environmental factors, And you have provided written and verbal prevention steps.' you keep signed copy

Have documented well written Articles on each disease/ Illness which cover all aspects of the illness most of all types of onset from hereditary to environmental through to age. Name these articles in the disclosure statement as provided.

This is not a Waiver [/u] but a Full Disclosure Statement.

The puppy buyer may still have a case against you, and take you to court but this becomes evidence of your effort to inform prior to purchase and reduces their case sufficiently.

It would also be good to know your stock's heritage. This it sometimes very hard, and some breeders try to cover any problems or just not mention them. But if it is not common knowledge then you are not expected to know. It may still make liable if something serious occurred but could reduce the amount. And of course your testing and preventative measures also are considered.

You then provide a guarantee of what steps you deem possible form you side if in fact a hereditary situation arises within a certain time period. Do not make this endless, and important to contact a contractual Lawyer for advice as to how long this guarantee should be for statutory purposes. You can go as far as to state a couple of options and say you'll discuss options viable at the time if need be. (Some you may be happy to replace an animal some you just would not).

By contacting a lawyer and determining a reasonable 'statutory liability period' it would be best to determine each illness but breed as a whole would be enough. The lawyer may not be dog savvy so as much breed info as possible based on factual documentation not just personal experience (the articles previously mentioned, ANKC conformation information, life expectancy, age of purchase, vet clean bill of health at sale and Price of dog sold will all help determine a time period reasonable) you keep signed copy

It Seems this sort of thing will be necessary in the future for all breeders to protect themselves from unwarranted claims. And doing all this will not prevent you from being pursued and diminishes their case against you.

Most large or expensive items have disclosure statements, most common products don't due to price and circumstance. There is usually precedent giving a basic idea from item to item giving a "normal process" from situation to circumstance.

There is very little with an animal because the idea of suing over a family pets health is basically new or settled out of court. Rights of either party is not common knowledge either which also prevents the development of the "Normal process" and "expectation of the provider".

By giving up money or replacement animals at any age because 'it's not worth the fight' or 'it's better for the animal this way' or 'I can't afford the legal process' or 'It's too stressful' is giving a normal process of owner complains money is handed over, They can legally claim medical expenses at there preference and there is not stated limit, and it is not just refund the money to be done with it anymore. We are going to create a norm of breeder fault by admission, or we are going to have to set legal boundaries. Once it gets to be public knowledge that owners can receive compensation on dogs they have or nature has defected. Claims will be a virus and just like schools not providing or allowing certain sports activities for fear of being sued, Breeders will stop breeding for fear of liability.

[Dame Aussie]

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

Yeah, me too.

[Rebanne]

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

Yeah, me too.

OP didn't say she googled to learn about the condition. I often google things relating to my breed, it helps keep me up to date.

[~Anne~]

Great post Angeluca. Thanks for clarifying. I'm sure it will be very helpful for both purchaser and breeder.

[Angeluca]

Great post Angeluca. Thanks for clarifying. I'm sure it will be very helpful for both purchaser and breeder.

thanks

[Kajirin]

This kind of thing just makes me really angry

Animals I buy are pets, I don't breed and desex when it is advised to do so by my vet. As a pet purchaser I could never blame a breeder for something that happens months or years down the track, as in my opinion 'that's life'. As long as they've done the relative species specific health tests and have healthy sires/dams, I can't ask for any more than that. Animals are not pre made plastic molds with metal interiors, they are living, breathing creatures - breeders I go to have done all they can to ensure a healthy animal and I thank them for that.

Environment, diet, over exercise when young can be contributing factors to problems later on. How can breeders be held accountable for the way a purchaser rears a pup once it has changed hands??!!

Meh litigation mad we've become...I'm amazed we haven't started suing our parents or grandparents for inherited problems some of us face and asking for compensation

[tdierikx]

I wonder what recourse owners of pet shop bought pups have over the dog's life span? Who do they chase when the pet they have bought develops some condition due to bad "breeding/genetics"? Willing to bet that no-one has actually tested that via consumer law 6 months or more down the track...

How - when so many conditions will have myriad environmental factors contributing to the development of some "genetic" problems - can anyone give a LIFETIME guarantee that a pup they sold will be perfect for it's entire life? Because that is what it sounds like some of the general public are expecting when they buy from a registered breeder... *sigh*

My parents adopted me - and it now becomes evident that I have a number of genetically predisposed medical issues... who can they sue? Or for that matter, who can I sue for my medical expenses? It's only 46 years later... but they were given a "perfect" baby girl all those years ago... *grin*

Why is bad luck always someone else's fault?

T.

[tdierikx]

Yeah - what Noishe said... lol!

T.

Edited October 23, 2013 by tdierikx