Defenses for sellers

As previously mentioned, the two types of implied warranties can be disclaimed, while express warranties cannot. The implied warranty of merchantability must be disclaimed by using the word ‘merchantability’ specifically in the disclaimer, either orally or in writing (better, as solid proof of the disclaimer exists). Disclaimers for the implied warranty of fitness for a particular purpose MUST be in writing. If these disclaimers are completed properly by the seller, the buyer cannot bring a cause of action against the seller if they are breached. It’s best for the seller to use a written contract, as oral warranty disclaimers can be very hard to prove.

The buyer’s failure to inspect the good before purchasing can also be a defense for the seller. If a buyer has either inspected the dog as fully as he or she desired, or refused to inspect the dog, they cannot later sue for breach of implied warranty with regards to defects that they could have seen on inspection. This would only apply to defects that are discoverable, that would be obvious to the buyer. This possibility may also arise if the seller gives the buyer possession of the dog, and gives them a window of time where they can have it inspected by a vet and return the dog if there are any defects. If any defects that could have been discovered by a vet during that window of time arise later, the buyer will most likely not have any right to recover from the seller.

Remedies for buyers

Traditionally, the remedy for defective goods is recission, which means canceling the contract and returning both parties to the state they were in had the contract never happened. The buyer would return the non-conforming or defective goods to the seller and the seller would return the purchase price. In the case where the good is a dog, many buyers have already become emotionally attached to the dog and returning it is then out of the question. Buyers can also attempt to seek return of the purchase price for the unfit dog. In most cases where this is the remedy sought, the buyer will probably get the difference between the purchase price and what the dog is actually worth. So, for example, if a person purchased a purebred dog intended for conformation show purposes, and the dog has some sort of defect that makes it acceptable pet quality but disqualifies it as a conformation dog, the buyer would get the difference between what the dog was purchased for and what the breeder usually sells pet quality dogs for. Some states have added additional layers of remedies for buyers on the bad end of a dog deal in the form of pet sales consumer protection laws, discussed in the next section.

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