A written bill of sale can
include terms and conditions that will help avoid misunderstandings
between the seller and buyer of a horse.
War Emblem in the past few months
soared to the head of the three-year-old class when he won the Kentucky
Derby and Preakness Stakes. Perhaps the only unfortunate sidenote to his
accomplishments was a dispute arising because the colt was sold
following his Illinois Derby victory at Sportsman’s Park and, by
subsequently winning the Kentucky Derby, was entitled to a $1 million
bonus offered by Sportsman’s Park. However, the Bill of Sale and
Purchase Agreement did not state whether the buyer or the seller was
entitled to the bonus. Such misunderstandings can be avoided with a
properly drawn up bill of sale, and in this article we will identify
some basic aspects to help you when you buy a horse privately.
The Uniform Commercial Code (UCC) Article 2 governs the “sale of goods,”
which includes sale of horses. The UCC section commonly referred to as
the “Statute of Frauds” requires that a contract for the sale of a horse
over $500 generally must be in writing to be enforceable. This writer
and the TOC strongly recommend a very thorough bill of sale to spell out
all the agreed terms and conditions.
The first paragraph should specifically and accurately identify the
parties and whether they are an individual, partnership, corporation, or
other entity. It should also include the addresses and states of the
individuals or other entities. The next portion is usually the
“recitals.” These “Whereas” statements describe the background for the
agreement, and that the parties wish to enter into an agreement. This
can be important in interpreting the parties’ intent if other portions
of the contract are ambiguous.
You should next specifically describe the horse being sold, including
its name, sex, color, markings, birth year, sire, and dam. Then include
the “transfer clause,” which conveys rights in the horse from the seller
to the buyer. Here, retention of breeding rights, any bonus purses (such
as the case with War Emblem), etc. should be addressed.
The bill of sale should specifically state the purchase price and
payment terms for the horse. This will include the price, method of
payment, and time of payment. If the seller is financing the deal,
accepting a promissory note, and retaining a security interest in the
horse, these terms must be included. It is important that the seller
file a financing statement in the jurisdiction where the buyer resides
and take other measures to best protect that security interest.
The agreement should address all warranties and disclaimers. Often the
seller will expressly warrant that he/she has title to the horse and the
ability to convey title to the buyer. Also, under the UCC horse sales
involve certain implied warranties that are legally interpreted by the
court to be included in the agreement unless expressly disclaimed by the
agreement in conspicuous print. Most often the seller will disclaim all
warranties, using the legally effective phrase “As Is.”
Other items a bill of sale can address are when title passes from seller
to buyer, how the horse is to be delivered, the cost of transportation,
insurance issues, and when “risk of loss” of the horse passes from
seller to buyer.
Without a written agreement to the contrary, the UCC provides that the
risk of loss generally shifts when the buyer tenders payment for the
horse, even though the horse is still in the seller’s possession and
control. A buyer might want a bill of sale to stipulate that the risk of
loss does not shift at the time of payment, but rather at the time he or
his agent takes possession.
If the buyer and/or seller are using agents, this writer recommends that
the agreement identify the agents and the amount each agent will be paid
While the above issues are the most common sources of costly litigation,
other things you might consider are 1) taxes and other impositions, 2)
what constitutes a default on the agreement and what types of remedies
are available in the event of any default, and 3) miscellaneous clauses
concerning the jurisdiction where any dispute will be heard, whether the
matter will be referred to arbitration, whether the losing party will be
entitled to an award of reasonable attorney fees and costs, etc.
Finally, any party who is to be bound by the agreement’s terms must sign
it. If a corporation or other entity is involved, it is important to
ensure the signing party has authority to sign for the entity.
With a thoroughly drafted Bill of Sale and Purchase Agreement, many
problems can be avoided. Without one, the transaction can become a war
that no one wins.
(This article first appeared in
the July 2002 issue of Owner's Circle and is reprinted with permission of Thoroughbred
Owners of California )
Main Articles Page.