What warranties are there in dog sales?

1. Express Warranties

Express warranties are those made, either in writing or orally, by the seller. These warranties can arise whether or not a written contract exists. So, while there might be a written contract disclaiming warranties, express warranties cannot be disclaimed. Express warranties are created by:

(a) any affirmation of fact or promise made by the seller to the buyer which relates to the good and becomes part of the basis of the bargain, and
(b) any description of the good which is made part of the basis of the bargain.

This means that if the seller makes promises that a pup is healthy, or that a coonhound has treed coons, and buyer is looking for a healthy pup or a hunting coonhound, then express warranties exist. Advertisements making promises or stating facts can also be construed as express warranties. Thus, using the previous examples, if the pup is sick, or the coonhound has no hunting abilities, the seller would be probably be found liable. However, mere opinion or puffery would not be an express warranty. The best way for sellers to protect themselves from liability of express warranties would be simply to not make any.

2. Implied warranties of merchantability

This is a special implied warranty arising to sales under the UCC that applies only if the seller is considered a merchant under the law. Under the UCC a merchant is defined as “a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill particular to the practices or goods involved in the transaction.” Basically, this means breeders, kennels, or pet retailers/dealers would be considered merchants. It excludes the occasional hobbyist breeder, accidental breeding, or casual or inexperienced sellers.

The implied warranty of merchantability promises that the good will be “merchantable.” How is a dog “merchantable?” Well, under the law it should be “fit for the ordinary purpose for which such goods are used.” When it comes to animals, this is a bit of a murky area for the law. At the very least, it means that the dog must be in good health, free of parasites and diseases. Most of the case law out there dealing with animal sales and implied warranties of merchantability is regarding horse sales. An example of one such case: a racehorse was purchased at an auction, and found to later have some leg problems. The court found that as the problems did not prevent the horse from racing, there was no breach of the warranty, as the horse was still fit for its ordinary purpose, which was racing. Granted it may not be a successful racer, but it was still fit to race.
Sellers found to be in breach of implied warranty of merchantability are strictly liable, meaning that it does not matter if they could have discovered the ‘defect’ prior to the sale. Latent defects, those which are not obvious or discoverable by a reasonable inspection by the buyer, are also a potential liability. For example, a horse buyer later found out a horse had three screws in its back leg from a break at one time, and the court found the seller liable. The defect making a dog unmerchantable does have to be traceable to have been in existence when the dog was sold, however. If it is a disease or problem that occurs later, and was not something that existed when the seller sold the dog, then there is no breach of the implied warranty of merchantability. There probably will be a breach if the defect is a genetic or congenital condition that could have been tested for in the parents.

Implied warranties of merchantability can be disclaimed, or waived by the seller. They can be disclaimed orally or written into the contract itself (best method). The seller must word it properly and specifically include the word “merchantability,” and be very clear to the buyer that no warranties of merchantability apply to the transaction. Thus, if no disclaimers are made, the warranty is automatically applied to the transaction, which is why it’s considered an implied warranty.

3. Implied Warranty of Fitness for a Particular Purpose

In addition the implied warranty of merchantability, many breeders and sellers are not aware they may be making another implied warranty of fitness for a particular purpose. An implied warranty of fitness has a few key distinctions from the implied warranty of merchantability. First, the merchantability warranty only applies to merchants, while the fitness warranty can be imposed on any seller. Also, while the merchantability warranty warrants the goods are fit for the ordinary or general purpose used, the fitness warrant guarantees that the dog is fit for the particular purpose that it is purchased for.

There are three elements necessary for the fitness warranty to arise:
(1) that the dog is to be used for a particular purpose or specific reason;
(2) that the seller is aware, or would have reason to be aware that the buyer is purchasing the dog for a particular reason; and
(3) the buyer of the dog relies on the seller’s skill or judgment to select the dog.

For example, say a buyer is looking for a good bird dog with strong pointing instincts. The buyer goes to a reputable kennel that specializes in bird dogs, and the buyer asks that the seller help them choose a dog with strong pointing instincts. When the buyer takes the dog hunting, it shows no inclination or interest in birds. This would probably be a breach of the implied warranty of fitness for a particular purpose.

However, if the buyer is just as knowledgeable as the seller, there cannot be any reliance placed on the seller, and then there is no breach. Also, if the buyer has another party helping them select the dog, there is no reliance on the seller to help the buyer, and no breach. This warranty may be really hard to prove with puppies, if a buyer is purchasing it for show or competition purposes, as there are many other variables involved in success in those arenas. However, if the dog is purchased for show, breeding, or competition purposes, and does not meet the breed standard, the seller may be liable. The breed standard would most likely be irrelevant if the dog was purchased with the purpose of being a companion or a pet.

As with the merchantability warranty, the fitness warranty can also be disclaimed in a transaction. Unlike the merchantability warranty, however, the fitness warranty cannot be orally disclaimed but MUST be in writing and conspicuous to the buyer. So if a dog is sold through a handshake deal, the seller cannot disclaim the implied warranty of fitness for a particular purpose.

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