Dogs Sales And The Law

[Puppoochi]

The way I see it, if a breeder adopts irresponsible breeding practices and breeds diseased animals when it could have been prevented, the breeder should then be accountable. But if all available tests for common diseases pertaining to the breed were done on the Dam and then put to what the breeder believes to be a suitable sire, then no, they should NOT be accountable.

[Steve]

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.

but you see this is really the whole issue - how is it that a breeder who sells a pup to a pet shop doesn't have this kind of thing to be concerned about and nor does a pet shop - the only logical reason a person who actually sells the dog they bred could be held more liable is if they made extra warranties and implied that the dog wont ever get sick or suffer from any genetic disease.

If we simply placed guarantees on our pups as we are made to do via mandatory codes in NSW and Victoria then this should be all thats required as long as we dont make any promises to the contrary.

[Angeluca]

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.

Apparently they have the same requirements as us breeders. The thing is they fight it, with high price speed talking lawyers the find the technicalities to get their client off, as the would do if they were hired by one of us.

The problem is that these pet shops are liable for a genetic fault in an animal like Cavs and the brain pressure thing or epilepsy in pugs or HD in lab/ GR crosses. They are state there return policy which actually isn't worth the paper it's printed on according to the ACL lady. But since they make these bold /false statements and they are a corporation no one questions them or tries to fight. Most don't know they can!!!!! those that do settle out of court with a signed privacy statement for a nice payout!!! there is more then enough claim, in the case of a cav that's head is too small for it's brain 9 mths down the track. (no chance of environmental factors there). People just need to know when and who to fight and those against pet shops need to make it public.

Breeders don't have the financial backing to intimidate. I would love to line up 5 lawyers in a negotiation for someone trying to take me for everything unlawfully. I would never have the resources to.

[Danois]

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

Actually there are a number of inaccuracies in it.

Firstly - the ACL is now a consumer guideline. The Competion and Consumer Law Act is actually legislation that is enforceable and able to have actions bought in relation too.

And in contract law - it is now about proving a case. In this jurisdiction the onus of proof is simply "on the balance of probabilities".

I would take the 'advice' from such helplines with a grain of salt. Only way to get a definitive answer is to get legal advice from an appropriately qualified legal professional.

[Angeluca]

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

Actually there are a number of inaccuracies in it.

Firstly - the ACL is now a consumer guideline. The Competion and Consumer Law Act is actually legislation that is enforceable and able to have actions bought in relation too.

And in contract law - it is now about proving a case. In this jurisdiction the onus of proof is simply "on the balance of probabilities".

I would take the 'advice' from such helplines with a grain of salt. Only way to get a definitive answer is to get legal advice from an appropriately qualified legal professional.

I rang the ACL commission, Office of fair trading, legal advice hotline, and a consumer hotline.

ACL yes is a legislation however the commission itself doesn't act on it that has to be done at court, the only thing they will do is advise a consumer if they have a claim, and what action to take which is usually negotiations which they will mediate but if that fails the consumer then has to seek legal advice and go through the court system.

About the contract law, What I basically meant is they have to try and prove what you did wrong and you have to try and prove how their claim is false, obviously the judge weighs up the facts and makes the judgement but you need to try and convince him you did everything you possibly could and informed the buyer of any risks.

Doing a disclosure statement and legally guided guarantee will help but not necessarily protect you.

Without sitting with a lawyer for hours experienced with this sort of case no one was willing to clarify terminology, in fact the ACL said it is left like that for the court to determine individual cases as they need be rather than 1 policy for all circumstances. This I understand, but when your trying to protect yourself from false and unreasonable claims it gives no information and no guides. Basically trust the courts when the situation arises. Which is fine if you have enough proof and information to educate a possibly dog literate Judge.

[Danois]

The advice I gave in my post - from a lawyer...

The ACL is actually nicely prescriptive and is not vague as you suggest. If that was the case, the courts become a nightmare as it is impossible to build a solid case law base.

You don't need a specialist for this kind of matter - an experienced commercial lawyer is sufficient.

Edited October 23, 2013 by Danois

[Elliot's mum]

I am living this nightmare right now but from the other side of the fence. I purchased my puppy in March 2013. I drove interstate as I didn't want to risk my puppy travelling with airlines or dog carriers. I paid $3500 for my puppy and got the breeders name from DOL. I had waited four years to get a puppy of this breed.

He is a lovely puppy, sweet natured, loving, cheeky and I love him so much it hurts. At three months of age I noticed he wasn't growing as expected, didn't want to eat and was very thin. A visit to the vet and some tests diagnosed him with a condition typical to the breed. I contacted the breeder immediately to let them know of the situation that he has seen a specialist (the best in my state) and that he needed an operation or he would suffer greatly and his life will be shortened. The breeder said she was sorry to hear of it, thanks for letting her know and that she had six dogs of this breed and hadn't had this problem before.

I never got asked to go to another vet or show any proof etc. I went ahead with the operation and during this time other issues were identified. Hiatal hernia and liver shunt were possibilities. $4000 later I had my puppy home, but he was never right and he has since seen four specialists to diagnose what is wrong including a cardiologist as his heart is so slow he nearly died under anaesthetic during one of the tests. I have now spent $10000 on vet fees and I still have a sick dog that is not even 12 months old yet. His last visit the specialist said that he has too many folds in his stomach so will always be sick and never thrive as with his slow heart he can't risk the operation. He now needs to live on drugs (5 different types) and be fed soft food from an upright position every three to four hours. My life has come to a complete stop for this puppy.

Now I don't think it is unreasonable to ask for my purchase price back for a puppy that I bought on main register in the hope I could show him (understood that he may not turn out to be a champion) or do agility with. I don't think it is unreasonable to want to keep this pup that I have been to hell and back with and continue to treat his systems and pay his medication. How is that unreasonable. I may have well have gone to a backyard breeder and bought a much cheaper dog of the same breed (which I had option of doing) and saved me a lot of money, even if it developed the same symptoms. I haven't bad mouthed the breeder, I haven't asked for a refund of $10000 or asked for the ongoing medical costs, yet it appears asking for my purchase price of $3500 and get to keep my sick puppy is unreasonable. Wow. What on earth would she do with him, put him to sleep, what benefit is there getting the dog back, you can't breed from him, you can't leave him unattended for more than three hours, seriously what is so unreasonable about my request?

[Steve]

I am living this nightmare right now but from the other side of the fence. I purchased my puppy in March 2013. I drove interstate as I didn't want to risk my puppy travelling with airlines or dog carriers. I paid $3500 for my puppy and got the breeders name from DOL. I had waited four years to get a puppy of this breed.

He is a lovely puppy, sweet natured, loving, cheeky and I love him so much it hurts. At three months of age I noticed he wasn't growing as expected, didn't want to eat and was very thin. A visit to the vet and some tests diagnosed him with a condition typical to the breed. I contacted the breeder immediately to let them know of the situation that he has seen a specialist (the best in my state) and that he needed an operation or he would suffer greatly and his life will be shortened. The breeder said she was sorry to hear of it, thanks for letting her know and that she had six dogs of this breed and hadn't had this problem before.

I never got asked to go to another vet or show any proof etc. I went ahead with the operation and during this time other issues were identified. Hiatal hernia and liver shunt were possibilities. $4000 later I had my puppy home, but he was never right and he has since seen four specialists to diagnose what is wrong including a cardiologist as his heart is so slow he nearly died under anaesthetic during one of the tests. I have now spent $10000 on vet fees and I still have a sick dog that is not even 12 months old yet. His last visit the specialist said that he has too many folds in his stomach so will always be sick and never thrive as with his slow heart he can't risk the operation. He now needs to live on drugs (5 different types) and be fed soft food from an upright position every three to four hours. My life has come to a complete stop for this puppy.

Now I don't think it is unreasonable to ask for my purchase price back for a puppy that I bought on main register in the hope I could show him (understood that he may not turn out to be a champion) or do agility with. I don't think it is unreasonable to want to keep this pup that I have been to hell and back with and continue to treat his systems and pay his medication. How is that unreasonable. I may have well have gone to a backyard breeder and bought a much cheaper dog of the same breed (which I had option of doing) and saved me a lot of money, even if it developed the same symptoms. I haven't bad mouthed the breeder, I haven't asked for a refund of $10000 or asked for the ongoing medical costs, yet it appears asking for my purchase price of $3500 and get to keep my sick puppy is unreasonable. Wow. What on earth would she do with him, put him to sleep, what benefit is there getting the dog back, you can't breed from him, you can't leave him unattended for more than three hours, seriously what is so unreasonable about my request?

Im really sorry to hear you are having such a serious problem with your dog but its difficult to give an opinion or offer any solution without knowing what the details are that you have missed out . What is the condition he was diagnosed with for example so we can understand if this was something the breeder should be held accountable for .Did you have insurance on the dog?

[Elliot's mum]

He was presented to the vet with chronic regurgitation. Was referred to the specialist clinic for BOAS and operated on due to the severity. During the operation they removed warts from his tonsils which came back as papilloma virus. They also did a biopsy of his stomach in which they identified a helicobactor infection. He reacted badly after the operation and had to spend a week in the intensive unit. He has undergone numerous tests since as he has not responded to medication to clear the infection, including an ultrasound to check for a shunt, two different barium tests, however during his last test to get a biopsy of his lower intestines and stomach he nearly died so the test had to be aborted. It was then identified that his heart rate was compromised due to his airway obstruction. He has since been identified as having hemivertebrae and has just been referred to a neurologist to determine if an operation is necessary due to the placemement.

On a side note I tested my other dogs in the house for papilloma and helicobactor to which I got a negative result.

He is on

Omeprazole: 5mg daily

Ranitidine: 15mg twice daily

Metoclopramide: 5mg 3 x daily

Metronidazole: 100mg sid

He is only allowed soft food fed every three to four hours, by hand with his head and neck stretched to aid the food reaching the stomach. He is not allowed any more than four 20cent pieces of rolled up soft food at each feed time. At the moment he is on soaked ZD prescription diet but they have allowed me to introduce a small amount of fresh chicken mince once a day. At my last visit they said to me there is nothing more that can be done for him except exploratory surgery which is a big risk due to his risk of anaesthetics. I don't know what I am going to do if the neurologist says he needs an operation. It is going to kill me if he needs an operation. I don't know how I will cope waiting to hear if he survived.

[Steph M]

That sounds so awful, though I have to say I have a dog with papiloma and it happens. He arrived with it but many dogs have them crop up later, sometimes even in their senior years. There's lots of suggestions as to why it comes up in puppies but out warty beast is quite happy, and easy to pick out of a crowd with no glasses on!

Again though, that sounds truly horrific. You all must be having a hard time.

[Steph M]

I should add we are also a multi dog house hold and the other (despite being born in a pound) has no sign of papiloma. Go figure!

[Elliot's mum]

I guess what I am trying to say is that it is easy to see one side of the story and feel like the owners are trying to get a free dog or get money out of you. But having been on the other side of the fence and having to deal with the emotional and financial strain of a sick puppy I can emphasise with people that have had the joy ripped out from under them about having a new puppy. I think I have shed more tears on the last six months than I have my entire life. I am emotionally and financially drained and I just don't know how I can afford another operation. In the meantime the person that bred the puppy is still breeding and selling pups and hasn't discontinued the line. She hasn't had to deal with the day to day struggles I have, but gets to have my money no consequences. It is all just leaving such a bitter taste in my mouth. I have had a few people suggest that I go to a current affair, because let's admit this is a story they would love, but I don't think it is fair to the breeders that would be mortified if one of their pups ended up this ill. However reading this thread I was surprised at the responses.

[Angeluca]

I guess what I am trying to say is that it is easy to see one side of the story and feel like the owners are trying to get a free dog or get money out of you. But having been on the other side of the fence and having to deal with the emotional and financial strain of a sick puppy I can emphasise with people that have had the joy ripped out from under them about having a new puppy. I think I have shed more tears on the last six months than I have my entire life. I am emotionally and financially drained and I just don't know how I can afford another operation. In the meantime the person that bred the puppy is still breeding and selling pups and hasn't discontinued the line. She hasn't had to deal with the day to day struggles I have, but gets to have my money no consequences. It is all just leaving such a bitter taste in my mouth. I have had a few people suggest that I go to a current affair, because let's admit this is a story they would love, but I don't think it is fair to the breeders that would be mortified if one of their pups ended up this ill. However reading this thread I was surprised at the responses.

I am so sorry about your troubles and the breeder's response. Were they nasty about refusal?

As a breeder I see both sides of the fence. There are people out there tryin to get their money back for a dog they intend to keep, however I don't think those people are in your situation. I have an agreement upon sale in writing that any pup proven to have hereditary problems will be offered a full refund of purchase price with choice to keep or return the dog. But it has to be proven to a certain degree. A specialist of my choosing has to be apart of the process, and no treatment is to be made until situation is agreed upon. Replacement is almost out of the question. They are welcomed to purchase another dog under the same agreement, if I find them suitable when I have a litter available.

There are breeders who are willing to stand by there stock, and despite possible environmental factors. Please don't write us all off.

I don't show and I'm just getting into obedience but we are far from trails. My stock is tested as much as possible for my location. My goldens have HD/ED xrays done (compulsory), and they are DNA tested, I haven't eye or heart tested because the closest location is over 3 hrs drive.

I hope your able to work out your situation. And I hope one day you'll have that fantastic puppy experience you waited so long for.

[Yonjuro]

This is so sad that you and your pup are having to go through this. I am no a breeder and I can only comment on your side of the story, but I don't think you are trying to get something for nothing. You have spent an enormous amount of money on trying to help this pup, not to mention the emotion strain from your obvious love of this dog. I would have thought that a refund of the purchase price to be quite a reasonable request in your situation. It sounds like this money is necessary for the next treatment or procedure.

My feeling on the whole 'return the pup and you can get a refund' is that it can be a bit of emotional blackmail. Most people will assume or be told that the dog will be PTS, so the new owner who has a bond with the puppy will just decide to keep and kiss goodbye any refund.

I hope things get sorted, and most importantly, that you and your puppy have a bright future. You should be congratulated for doing so much for your beloved dog.

[Steve]

I dont think I only see one side of the story .I try to assess a situation based on my experience and Im a breeder and a dog owner .

This is a heartbreaking story and my heart goes out to you.

Breeding animals which are destined to a life of misery and or major surgeries to correct things which impact on quality of life is in my opinion right up there with puppy farming - in fact I think its worse from a cruelty perspective so Id like to know the breeder has taken this seriously and they are actively doing what is required to try to prevent anyone else having to deal with what you are dealing with via the BOAS.

The BOAS is caused by breeding choices and whilst the warts and the bacteria may have originated from point of sale you would have a hard case in trying to pin that on the breeder. Both things are contractible by any dog at any time so what comes as a result of the BOAS and what comes from the bacteria and warts need to be viewed separately.

Obviously the breed is a brachy breed and all dogs of these breeds have brachy head syndrome to at least some extent .Some would argue that as you were purchasing this breed you accept the fact that the risk for this is increased unless the breeder implied that their puppies would be immune to this risk or in some cases even if you only assumed there would be no risk because you were using that particular breeder and it wasnt explained to you that there was the same risk factors at play.

There are two big issues here - what may be the legal situation and what is the ethical or moral situation.

The legal situation is that you dont have to return the dog if you dont want to in order to qualify for some kind of compensation. Any breeder in the year 2014 in Australia who places this on conditions for a refund is making a huge mistake.

If you want to go after a refund and still keep the dog especially if the breeder has accepted fault and offered you a refund if you do return the dog you have a fairly reasonable chance of having that decision awarded to you. If you want to keep the dog and go after payments for vet bills incurred you also have a fairly reasonable chance of having that awarded to you as well.The dept of fair trading or a commercial lawyer will advise you on what your rights are and what you can do about that part of it all. Naturally this will be impacted by what was given to you as a written,verbal or implied warranty which was not contradicted at time of sale. You dont need to go to a current affair a legal person will listen to your story and tell you whether you are able to demand payments.

In days gone by people sold puppies and people bought them knowing it was a live animal and things could go wrong .In some breeds it was accepted that they had a greater risk of some problems than other breeds. People didnt expect the breeder to pay past a short time frame - 10 days if something turned up. Registered breeders have marketed themselves as superior. They talk about how they test and chant about how buying a puppy from them is a better option because their dogs are healthier so some people who come to them and purchase from them believe that and unless the breeder points out that this is not necessarily true this is an implied warranty and as a result if something goes wrong the breeder must compensate because its why the buyer came to them and bought their product.

Right now registered breeders should work out they are not immune to the federal consumer laws and become more aware of their marketing and how they promote their product and themselves. They should have changed their contracts to include the ability for the buyer and the buyers vet to examine the dog before ownership is transferred rather than when they take possession .They should be explaining about the potential problems the breed has and the species has being very clear that as it is a living animal that any ideas the buyer has that something wont happen that it might. They should leave no doubt for someone who is looking at a claim as to what it was the buyer thought they were getting and that they understood there was no implied warranty past a certain time frame. In this case if the contract covered this and the buyer had taken the pup to the vet within a 72 hour time frame after taking possession as they would have agreed to do for an inspection by their vet BOAS would have been diagnosed before the owner took legal ownership, the vet would have declared the dog fit or unfit for sale and the buyer would know exactly what they were taking ownership of on that day and the story would have been different .

If the dog was not diagnosed with BOAS at that first vet visit then the breeder should be explaining that they have no control over what happens past that point - because they don't.

The other is an ethical issue and for a different topic.

[sas]

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.

Some people may feel your Vet is someone they trust nor feel comfortable with and would prefer their own Vet. This is the reason why everything should be spelled out in writing before the puppy goes home.

To the Poster:

Don't take the puppy back (not that you can force them into it), that is a bitch of a thing to do and what are you going to do with it? Euth it? It's not a toaster.

Just give them back the purchase price, that is the right thing to do - after-all you are the one who sold them a defective dog.

Edited January 13, 2014 by sas

[Steve]

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.

Some people may feel your Vet is someone they trust nor feel comfortable with and would prefer their own Vet. This is the reason why everything should be spelled out in writing before the puppy goes home.

To the Poster:

Don't take the puppy back (not that you can force them into it), that is a bitch of a thing to do and what are you going to do with it? Euth it? It's not a toaster.

Just give them back the purchase price, that is the right thing to do - after-all you are the one who sold them a defective dog.

You can offer them a refund if they return the dog but they don't have to accept that and you may find you are not only paying the refund but also the vet bills.

By offering a refund under the conditions you decide will apply you are accepting fault - or you wouldn't be offering a refund in the first place and you have not much defence. Under Australian consumer law it isnt an automatic done deal that they have to return the product to get a refund.

Edited January 13, 2014 by Steve

[Elliot's mum]

And to add now to the legal issue, when I took my boy to the vet he immediately said that he had very closed nostrils to the point that he wouldn't be surprised that he had other symptoms of BOAS. This was from just viewing him alone. He kept him for the day and did further checks under a light anaesthetic and said he did have symptoms of the condition. The specialist he referred me to is a breeder of pugs himself, has done studies on BOAS and said he wouldn't wait as his breathing is so compromised he could have further complication very early on in life.

When the operation was done he said that even the saccules had to be removed as they had already inverted. So one questions how do two vets identify this condition quickly, yet the vet who check the pups gave them a clean bill of health. I don't see how this condition can deteriorate over a couple of months so quickly. The hemivertebrae I understand doesn't show up when the dog is young and develops as they grow but it is still an inherited condition.

I am more disappointed in the response from the breeder and the controlling body. As you say they speak that they are superior breeders and imply that going to them you are going to get healthy pups. I am not silly and don't expect a dog that never gets sick in its life or gets cancer, this happens. But I would hope that they are breeding from healthy stock to eliminate the chances of getting conditions such as the ones above. Yet the breeder has ignored me other than the first email to say she was sorry to hear the news and that all her bostons snore and make noise it is part of the breed (which implied that I was over reacting, despite the advice of both specialist and vet) and has not responded to any further emails. The controlling body basically said don't care civil matter. Surely if you put it out there that your breeders are responsible, bound to a code of conduct and are doing their best to breed healthy dogs you would react. But instead allow her to do a repeat mating and register the pups! If, as a buyer, I have no better chance of getting a healthy pup from a registered breeder, or some protection if something goes wrong, than I would out from someone selling unregistered pups in the trading post for half the cost, why (thinking logically) would I pay the extra money. I know things go wrong, I understand that sometimes things can miss a generation, but as a breeder I suppose I just expected them to care a little more.

[Yonjuro]

I would contact them again, put in point form what you have mentioned here. Say that you need further treatment after the 10k you have already spent and think it is only fair that you are refunded the purchase price to go towards this. A calm but firm phone call is far more powerful albeit much harder to do with matters such as this. Don't take no for an answer.

[Starkehre]

BOAS in some of it's manifestations (including snoring, elongated palate, everted saccules and any of the related hyperplasia on the throat and tonsils) are not always present in baby puppies. They can develop over the following weeks/months and typically continue to develop. I have spoken to specialists about this at length.

Another thing you may wish to investigate (that can be in part related, though not directly but often come hand in hand with BOAS) is high vagal tone (diagnosed by eco-cardiogram) and also carotid hypersensitivity (fainting caused by small amount of pressure around lower parts of the neck ie collars). Poorly patented tear ducts is another BOAS condition also, so if you have a lot of eye weeping, that could be your culprit.

I am sorry to hear about your dog's health issues and I wish you all the best with treatment and some form of peace regarding your feelings towards the breeder and the best possible outcome for all concerned.

Edited January 14, 2014 by dyzney