As a "horse lawyer" people usually do not call me to tell me how happy they are with their newly purchased horses.
One of the most common calls from potential new clients (i.e. the variety that is extremely unhappy and ready to litigate) involves the post purchase discovery of a serious soundness issue. Recently during one such call I rudely interrupted the caller to interject, "Excuse me, but let me guess which joint is causing your horse an issue?" My guess was correct and the caller was dumbfounded. While it was the first for her, the same sorts of issues crop up time after time in my world.
How do you protect yourself in a situation like this? a) Have a veterinarian, your veterinarian, perform a thorough prepurchase examination, and b) have an experienced lawyer prepare a contract to close the loopholes by obtaining proper warranties/ representations from the seller. The combination of these two steps should provide adequate protection from the possible deceptions that so often turn an excited purchaser of a new horse into a disgruntled, if not disillusioned, victim and caretaker of an unsound horse.
Top ten prepurchase exam considerations:
- Is the vet performing the exam absolutely free from any conflict of interest or possible undue influence? Make sure the vet (and no vet who is a member or employee of his/her group or practice) has never performed any services for the seller. Do not, under any circumstances, ask the seller to refer you to a vet to perform the prepurchase exam or consult about radiographs, ultrasound images, etc..
- Is the veterinarian performing the prepurchase exam willing to promptly (within 24 hours) provide written report of his findings and make all radiographs and scans available digitally for the potential purchaser to use to obtain a second opinion, if necessary?
- Is the veterinarian willing to review all the vet records obtained from the seller and watch the horse being ridden (preferably by the potential purchaser) as part of the prepurchase evaluation for soundness/coordination-neurological issues?
- Does the vet know how much money you intend to pay for and the purpose for which you are purchasing the horse? Share the purchase price with the vet and ask the vet to assume you are buying the horse for resale; if you want the highest level of scrutiny and are willing to pay for it, this request will put the vet on notice of your intentions and encourage a much closer look.
- Is the seller willing to provide all veterinary records (including all medications dispensed, radiographs, ultrasounds or nuclear scintigraphy, i.e. "bone scans" performed) for the last 18 months to two years as well as any other "therapy" records such as acupuncture, massage, shock wave, hyperbaric chamber, etc. for review by you and your vet prior to the purchase decision?
- Is the seller prepared to represent that, at the time of the prepurchase exam, the horse is not under the influence of any medication, is not being treated with any substance to address any past or present physical condition experienced by the horse and is willing to allow the veterinarian to take a blood sample for drug testing to verify the accuracy of this representation?
- Has the horse been examined by a vet in connection with a potential purchase within the last year?
- Is the seller willing to represent that the horse has not had any surgery or any intra articular injections of any substance (including without limitation, corticosteroids, blocking agents or hyaluronic acid) during the seller's ownership, other than those disclosed by the seller, or if such surgeries or "joint' injections have been performed upon the horse and are disclosed, is the seller willing to identify all of the dates when such procedures were performed and what substances were injected into which joints?
- Is the veterinarian willing (and capable) to effectively communicate to the potential buyer the significance of the findings and provide an opinion as to the functional effect of these findings in writing promptly after the examination is completed?
- Is the veterinarian sufficiently experienced with the particular type of riding that the potential purchaser intends to do and the kind of work that the horse has been doing, to provide the potential purchaser with a high level of confidence that the vet understands the amount and level of work the horse will have to perform to fulfill the buyer's intended use?
This list is not exhaustive and does not address such issues as prepurchase considerations for future breeding soundness of the horse. It is focused upon the veterinarian's performance of the prepurchase exam for a performance horse, and the Seller's willingness to make reasonable disclosures of the horse's condition. This list has a particularly narrow focus on determining if there are any pre-existing issues that could lead to unsoundness making the horse incapable in the future of performing the tasks for which it is being purchased.
In this era when aggressive veterinary intervention with lameness issues, (particularly with the prevalent use of intra articular injections of corticosteroids), is far more common, latent defects in horses may be hidden even from the experienced examining vet, if proper due diligence is not performed in conjunction with the prepurchase exam. The combination of a) the seller's reasonable disclosures in response to the purchaser's requests coupled with, b) representations and warranties in a written purchase agreement, and c) a thorough prepurchase veterinary exam performed by an unbiased, qualified vet working exclusively for the potential purchaser, may afford the best opportunity to avoid the heartbreak and financial loss caused by a post purchase discovery of a latent, undisclosed and undetected condition suffered by a horse after the sale is final.