Friday 30 September 2016

The law protects you from being hoodwinked on livestock deals

Theresa Murphy

Published 28/10/2015 | 02:30

Rights exist to protect consumers.
Rights exist to protect consumers.

Advice from our barrister on consumer rights and farming.

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Question:  I am unsure where I stand legally if I have sold an item/animal which the purchaser is not happy with or purchased an item/animal myself which is not 'up to the job'.  What are my legal responsibilities and protections in each of these situations?

Answer: Before we look at the specifics of farming, it's important to know your rights as a consumer in everyday dealings. On a basic level, you are a 'consumer' for the purposes of 'consumer protection law' when you purchase goods or order services outside the course of your ordinary business.

The importance of this distinction is that there is very strong legal protection for people acting as a consumer.

As a consumer purchasing goods or services, the law is very clear you are entitled to get the good or service as it is described. If you purchase a jar which states that it is strawberry jam, then if the jar does not contain strawberry jam you are entitled to return that to the seller for a full refund. You are also entitled to assume that goods are of 'merchantable quality'.

This means that the items must be fit for the purpose for which it is normally bought and are reasonably durable having regard to the price. If a good is very expensive it should be more durable than a cheaper alternative product.

If you purchase a service, you can expect that the person performing the service has a reasonable skill in performing the service and it should be provided with proper care and diligence.

If you find that the items or services that you have purchased do not meet these standards, then you can:

Return the goods to the supplier who sold it to you (you should not return the goods to the manufacturer)

You must act as soon as you can - a delay can indicate that you have accepted faulty goods or services

Do not attempt to repair the item yourself or give it to anyone else to repair it

Make sure that you have a proof of purchase (a receipt, cheque stub, credit card statement or invoice)

You are always entitled to a full refund provided you meet these requirements.

You should also bear in mind that these rules only apply when you are purchasing a good or service from a person acting in the course of their business. For example, if you purchase a car from a second hand car dealer, then you can expect that all of these rules apply. However, if you purchase a car from another person who does not sell cars as a business then you will not have the benefit of these protections. This rule applies to all transactions where the seller is effectively a 'private seller'.

Consumer law and farming

When a person is acting in the course of his farm business - for example, buying and selling animals - he or she will not be considered to be a consumer and consumer protection laws will not apply.

However, the ordinary rules of contract law do apply. When you sell or buy a good and pay/provide consideration for that good then a contract is formed. Contracts can be written or oral - it is easier to enforce the terms of a written contract because the terms will be clearer however oral contracts are enforceable.

Selling animals as described

One key consideration with the description of an animal being sold is whether the seller was expressing a belief or a fact.

For example, if the seller of a heifer describes her as an in-calf heifer, then the purchaser is entitled to consider this a term of the contract and should that heifer turn out not to be in-calf, then the purchaser is entitled to return the animal for a refund. However, if the seller says he 'believes' the heifer is in-calf, then this is unlikely to be considered a term of the contract and will not be enforceable.

The biggest difficulty in this context is proving what was said prior to the animal being sold. That's why it is always advisable to get descriptions in writing from the seller.

The same rules would apply in the context of animals being sold through marts or sales. It is likely that the display of a description of an animal on a mart board will amount to an enforceable term of the contract and should the animal not match the description, then the purchaser would be entitled to a refund (this is subject to the rules of the mart).

Breeding animals

A more complicated situation arises in the context of animals which are sold for a particular purpose - for example, a 'breeding' bull or heifer. By selling an animal described as a 'breeding' animal you are effectively stating that the animal is suitable for breeding and therefore healthy and fertile.

If an animal later turns out to suffer from genetic infertility the purchaser would have a right to return the animal to the seller and seek a refund. However, if the animal becomes infertile as a result of, for example, an injury or disease after the sale, then the purchaser has no entitlement to a refund from the seller.

The more difficult issue in the context of 'breeding animals' is proving whether the infertility came about before or after the sale. This creates a difficulty for both parties and can result in legal proceedings.

Until there is some resolution of the matter through legislation or otherwise, the advisable action is to have the animal tested for fertility prior to sale and both parties should agree on the tester. This would provide a level of security for the seller and also the purchaser.

However, the case of extremely conditioned bulls prior to sale may still cause a problem for purchasers when they find that the bull's fertility is effected by loss of condition after sale. Physical inspection of the animal at the time of sale is also important to pick up on any injuries an animal may have.

Damages

There are many stories being spun in the agricultural sector about sellers being liable for large scale damages particularly in the case of breeding animals not performing after sale.

It is essential that a buyer who finds that a purchased animal is not performing as it should, does everything reasonably within their power to keep their losses to a minimum. For example, if a bull is not putting female animals in-calf and they are all repeating then the farmer should seek an alternative method of putting the animals in calf like AI or another stock bull.

What the courts consider a reasonable period of time before the purchaser identifies that a bull is not performing varies from case to case.

In assessing damages, the Courts tend to look at the general performance of such an animal and the profit that would ordinarily have been made had the animal performed as it should. The purchaser is then awarded compensation for this amount. For example, if a farmer suffered a two-month delay in getting his animals in calf then the level of damages would likely amount to the loss of profits resulting from the calves being two months younger at sale.

The biggest issue facing purchasers and vendors is legal costs. In many cases, the potential legal costs could far exceed the loss of the animal's value.

*This article is intended as a general guide and you should seek independent legal advice in relation to specific circumstances.

Theresa Murphy is a barrister based in Co Galway

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