Does a sales agent count as a dealer?

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LCH611

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I sent a horse to be sold via an event rider with excellent facilities. They acted as agent for me when it came to arranging the viewings, co-ordinating with the vet and doing the deal with the purchaser (who was not very straightforward to deal with). The sales agreement that the purchaser asked to put in place, names me as the vendor. Within a couple of days the purchaser decided they wanted to return the horse as they found him very agitated to ride when there were horseflies around. She says that she is entitled to a refund under the sale of goods act, is she right?
Thank you
 
Good question. Hindsight is a wonderful thing ... Should have told her to clear off the second she started to be less straightforward! Was only a matter of time before something wasnt right with horse (ie new owner is a numpty, nowt wrong with horse!)
 
The agent was selling in a professional capacity so should back this up in the same way a dealer should, many will try and get around it by stating it was sold on behalf of the owner but if they regularly take sales liveries or sell their own they should come under the act, I have sold on behalf of clients and always make it clear that if the horse has to be returned then the owner has no choice but to go back on the market, it is a risk with any sale and a "difficult" buyer will always be a greater risk.
 
Very true...... was suspicious when she wanted to effectively give herself a trial period by paying for him in two stages.... unfortunately there was a financial imperative to sell and she then came up with the money and seemed very happy.
 
can I ask views on whether a horse that was tried twice, vetted, had the bloods run (all satisfactory) and was sold as being an all round family horse/ladies/gents/masters hunter with video & photos illustrating, can be returned as not being as described as he was agitated when hacked out 2 days into his new home, with lots of horse flies around? She said that he became very distressed and I can see that this is very possible - in line with many other horses who also do not enjoy the horse fly season.
 
The law the last time I checked it is that if the horse was sold by an agent the owner of the horse is the one who is legally liable. They then sue the agent if the agent misrepresented the horse.

But then, of course, you get a muddle over whether this was a private sale, not covered by the sale of goods act, or one that is covered. That I'm not sure of, though I believe as long as you yourself are not a dealer then the sale of goods act does not apply. You probably need to consult a lawyer anyway (BHS, BD, BS, BE member?)

I hope you get it sorted.
 
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Send her a bottle of fly repellent and/or tell her to ride at a time of day when the flies aren't so prevalent.

She's trying it on....big time.....in my view.
 
It is a tricky one, to my mind a family horse will not get too upset by anything, a hunter suitable for a master would be a different ball game and I am not sure I would expect one horse to be both, plenty of horses get upset by horseflies but a few will lose the plot and could feel very intimidating to a new owner. I don't think it unreasonable to be hacking out within 2 days of getting him home.
 
You would do well to read through the Sale of Goods act and get some professional advice from a qualified legal advisor (i.e. not me).

You have already mentioned that you are named as the seller, but don't give much information as to the capacity of the buyer. You might find that the buyer has less protection if acting in a professional capacity, than if acting as a private individual.

The wording of the sale contract is very important. Ideally you should have had the contract drafted before asking your agent to organise the sale, and should have determined in advance if you wanted to grant the agent the power to amend the contract.

It seems to me, that it is not exactly unusual for a horse to become agitated when there are horseflies around. The number of threads on here asking about repellents, traps and masks makes me think that it's a quite common problem: a common risk that a reasonably experienced buyer should have known about, and should know how to mitigate.
 
totally agree that it isn't unreasonable to be hacking out on day 2 - I'd have done so before then! He is a very big horse that is hunted by a small girl in a rubber snaffle but it is perfectly conceivable that as a fairly elderly person riding him she didn't enjoy his reaction if he was plagued by horseflies. However I do feel as though it is a situation that can be managed (as I have to do with my other horses as none of them are enjoyable to ride when the horseflies are rife) and I do feel that I shouldn't have to take a financial hit (further sales livery and so on) because she has decided that she has over horsed herself.
 
I’d be inclined to call bhs helpline / get some legal advice.
I’d also get the agents take on it because presumably they have already taken their %.
My initial reaction is to tell them to swivel BUT I suspect this type of buyer would then go to other extremes to claim ‘unfit for purpose’.

It might play in your favour that the buyer wanted you down as the vendor (which to my mind is correct) as then that demonstrates it is a private sale
 
Yes it is my understanding that in this situation, you are the vendor therefore it is a private sale and therefore the buyer can only claim under not as described (not fit for purpose). Therefore if the horse was described as great with horseflies and isn't they have a solid case. Anything other than that starts to get a bit more wooly, like 'great in every situation' etc.
 
No, the agent is not classed as a dealer if they sell on behalf of an owner. If the owner is a private seller then the sale of goods act doesn’t apply. However if the owner is classed as a dealer, even although an agent sold the horse, then they will be liable. Was recently given this information by an Equine solicitor.
 
Hi Keith, the contract was at the purchaser's instigation. She was buying him for her own personal use.

The 2 relevant clauses I believe are, that I confirmed that he exhibited not stable vices or behavioural problems whilst in my care, and that to the best of my knowledge he had no unsoundness or health problems that would make him unfit for general riding work.

In the 3 years we have had him he has been hacked out through open countryside (on his own and in company). He doesn't like horse flies any more than my other horses do and consequently I always try to mitigate against them - which I consider to be a perfectly normal part of horse ownership in the summer. I am going to take legal advice but thank you for your input
 
Teddypops please would you mind PMing the name of your equine solicitor as I am about to take some legal advice on this matter and they sound like a good starting point......... thank you very much!
 
I think you are classed as a private seller, you used the agent as they had better facilities and time to facilitate a sale only. I guess the only slight confusion to check with a solicitor is about the agent taking a % of the sale, and so directly benefitting from the sale.


I would also check what the agent thinks, as they took their cut.


Personally, I would take the horse back. I don't think you 'have' to, but having seen a few of these go through with honest sellers, they ended up losing or taking the horse back later down the line as it is emotionally draining. I know you cannot afford to, but it may actually work out more expensive down the line.


At least if you take the horse back now then you have a horse fit for sale. If the current owner has the horse for a few months then it is likely to be spoiled in some way, or simply turned away and unfit.
 
I know an agent in England .
Yes they are treated like a dealer in a case like this the new owner can return the horse .
You of course will have to return the money .
 
You mention you have other horses so you would also need to consider how many you have sold in the past. Any more than 1 or 2 a year then you could also be classed as a dealer.

If the buyer has bought from a sales livery knowing that they are facilitating a private sale (which is what your paperwork seems to show) then this would tend to indicate the buyer was fully aware that the sale was between two private individuals and that the SoGA would not apply.

So they would only have a case if any material facts that were disclosed to them either verbal or written were false.

Also the SoGA (even if it does apply) does not allow you to just change your mind there has to be a fault that was present and not communicated to them at the time of the sale. The benefit it gives over a private sale is an implied knowledge of faults present but not declared (not there in a private sale where only if faults are known and lied about can be used to void the sale).

It might be worth speaking to the new owner and discussing going to assist them in the settling in period (depending on distance) as a gesture of goodwill without any hint of liability.
 
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Consumer Rights Act 1 October 2015
As a customer you enter into a contract with a retailer when you buy a product.

Under the Consumer Rights Act 2015 (if entered into or after 1 October 2015) or the Sales of Goods Act 1979 (if entered before then) the retailer of the product has to ensure it is of satisfactory quality at the time of sale.

This means it should be fit for its purpose, free from minor defects, safe and durable.

Because it has stopped working there is a presumption that the fault was present at the time of sale.

As a result of this, the retailer is in breach of the contract and under the 2015 Act the purchaser is entitled to a repair or replacement.

The retailer should do this within a reasonable amount of time, without causing any significant inconvenience and it should cover all the associated costs.

One can enforce this right for up to six years from the date of the breach, regardless of whether you have a warranty.

It is also an offence to give consumers misleading information about their legal rights.

Covers all goods including horses, livery yards, riding lessons and horsebox repairs.
Buyers have the right to a 30 day refund for faulty, not as described (always keep advert) or not fit for purpose goods bought from a business such as dealers.
Even after 30 days have passed the buyer can still be entitled to a refund - full if under 6 months, or partial if over 6 months but must allow the trader to repair or replace the item first.

However if you buy privately this does not apply.

Under the new ruling those who do not apply 'reasonable care' as agreed with the consumer will have to put things right such as redo the job or give some money back.

Under the Supply of Goods and Services Act 1982 the supplier has a responsibility to supply goods that are of satisfactory quality, being free of inherent defects, durable and fit for purpose.
Services should be provided with reasonable care and skill and that any goods should be of satisfactory quality.

Letter before action www.which.co.uk/legal

Under the Unfair Contract Tems Act 1977, the supplier can’t exclude their responsibility under the Supply of Goods and Services Act1982. Your rights under the Act require the to provide goods that are of satisfactory quality.
When goods have an inherent defect, and you’re not in a position to reject them within a reasonable time, you can insist that the seller provides a remedy, repair or replacement. They should do this within a reasonable time and without significant inconvenience to you. Any warranty is in addition to your statutory rights, not instead of them. If you have to issue legal proceedings, you have up to six years to do so in England and Wales, five in Scotland.

The Sale of Goods Act 1979 can be relied upon where there are no explicit terms. The main provision of the act are that goods should be of ‘satisfactory quality’ and ‘fit for their purpose’ which is where the requirements of a business sale comes in.

If someone is acting in the course of a business with a view to making a profit or a history of a course of dealings can be shown then section 14 of the act which relates to implied terms about quality of fitness will apply to the sale. The sellers multiple adverts are good evidence of a course of dealing.

They stay in business because no one actually takes any concrete action against them. So they've spent the money, so what, small claims court costs very little to institute proceedings. When you win & get a judgement move the judgement on to the High Court Sherriffs for them to enforce the order. They will either get cash or seize goods to the value of the debt. This service does not cost a vast amount & they do get results. To many people believe what the sellers say about spending the money & haven't got any money to repay. They lied when they sold the horse & they are probably lying now! Get the court judgement & then let loose the sherriffs & go for the jugular!
Read more at http://www.horseandhound.co.uk/foru...gue-Dealers-Staffs-Derbys#s8w4tS5pOxxcOiDo.99
 
Thank you Fred66 for your comprehensive reply. As a family we have horses and in the last 2 years I have sold two ponies that my children have grown out of. This horse belonged to my daughter who is now starting her first job and is putting horses on the back burner so I would find it hard to believe that I could be classified as a dealer. The sales contract that the buyer insisted on lists me as the seller and the money went direct into my account....... I have replied to her politely stating that I do not believe that the SoGA applies, she was able to come and try the horse as many times as she wanted, had him vetted and I do not believe that an agitated response to horseflies constitutes a misrepresentation. I can accept that she no longer wants to keep him if she feels overhorsed (life is too short to keep a horse you have taken against) but I do not believe that she is entitled to hand him back and get a full refund so that I have to pick up the tab for sales livery. The agent is happy to keep showing him to people if she brings him over and doesn't want to send him on sales livery (she lives nearby), and I will actively keep pushing suitable people in her direction, however she has been disingenuous in her letter to me by making out that it is a behavioural problem, and omitting the fact that it was caused by horseflies - which she had previously told the agent. It is all a bit of a nightmare and I wish for the horse's sake I could just have him back and be done with her, but there was a pressing financial need to sell him and I no longer have the full amount to give back......
 
[QUOTE












. They lied when they sold the horse & they are probably lying now! Get the court judgement & then let loose the sherriffs & go for the jugular!
Read more at http://www.horseandhound.co.uk/foru...gue-Dealers-Staffs-Derbys#s8w4tS5pOxxcOiDo.99[/QUOTE]

Hi Peter I appreciate you taking the time to reply at length. The nub of the issue in this case seems to turn on 2 points:
a) is it a private sale in which case the SoGA does not apply
b) does a horse acting in an agitated manner when ridden when there are horse flies around, constitute a defect and make it unfit for purpose?

To be clear NO lies have been told. The purchaser was not told that he has a skin like a rhino hide and doesn't mind being eaten alive by horse flies/zapped by an electric fence/beaten with a schooling whip/ or anythinh similar thing that would be painful or uncomfotable as none of those things would be true....... but how many horses don't get a bit flustered by such things? If anyone has a horse-fly proof horse I would like to clone it please as the horse flies ruin summer as far as I am concerned!
 
There are many threads from people who have bought a horse from a dealer, want to return it for a refund for whatever reason, and the dealer replies by saying that they haven't got the money.

OP I feel sorry for you. You have sold a horse and given the buyer every opportunity to try it. Some horses really do not like horseflies, even my very quiet horse can get upset if they are really bad, but he doesn't misbehave. Solution - go out riding early in the morning before the flies are around, at this time of year. I think it is entirely OK to take a horse out for a hack within the first 2 days, but what exactly did it do? Did it bolt, buck, try to get rid of her? Some horses may threaten to do something horrible, but never actually do anything, but that takes knowledge and experience of the horse to realise that, and also if you have had a horse in the past that really would buck it can make you apprehensive. I would suggest that she keeps the horse a little longer and gets to know it better - and you haven't got the money to refund anyway.
 
Keith_Beef said:
I hope that after the asking price, you thought to add "or best offer".

And next week you can ask another question "does this make me an auctioneer?"
:p
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:) They are dealing directly with her and it seems likely she will reject the offer at the price she paid a week ago as she wants more.............

I might sell secondhand cars instead as would be more straightforward!
 
Do you have proof of this offer if she rejects it? And ideally a copy of the advert. I would say this puts a different light on her trying to return the horse & may make it difficult for her to return him and demand a refund (which I doubt she can do anyway). She can hardly return him as unsafe to ride if she's advertising him using almost the same advert as you!
 
LCH611 said:
:) They are dealing directly with her and it seems likely she will reject the offer at the price she paid a week ago as she wants more.............!
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If this is the case then she is acting as a dealer in that she has purchased a horse for resale at a profit and she would have zero chance of success in a claim against you as a private seller.

If you have proof then breathe a huge sigh of relief and inform her that as far as you are concerned it is case closed and that if she does claim then you would be looking to take legal advice and would counter claim for your costs.

Over such a short period of time she would only ever have a claim for the difference in price paid and price offered, so if she is offered what she paid and turns it down then she will be entitled to nothing.
 
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