Oscar and the Chocodiva

Online home for Oscar and the ChocoDiva or, to be precise, the online home for Morrigan's Cu mac Shimidh and Morrigan's Godiva.

Tuesday, February 24, 2009

Writing a Strong Puppy Contract

The following is not legal advice and should not be construed as such. The information contained herein is meant for educational purposes only.

Contracts are the tool by which breeders may attempt to safeguard a happy and healthy relationship with puppy buyers. A contract is defined as an agreement between two parties to do a particular thing (sell a puppy) in exchange for something of value. Regardless of whether a puppy is placed as a companion, a show dog or breeding stock, a well-written, clear and concise contract establishes expectations for both parties and can attempt to ensure the health and wellness of the puppy, a goal for which all breeders strive.

But many breeders reuse the same old contract from twenty years ago or pilfer one from another breeder with little regard as to whether it properly states the breeder’s expectations and assurances for the buyer. There are not too many lawyers specializing in the sale of well-bred puppies, so bringing a rough draft of a contract to your attorney may save on fees later and give the attorney something with which to work.

What elements are essential? Regardless of one’s state of residence, certain criteria must be represented in an effective contract.
  • Identify the parties. State the correct legal and full names of the breeder or breeders and the buyer or buyers. Then assign a nickname to make the reading of the contract easier later.
  • Describe the purpose. Clearly state that this contract is for the sale of a puppy.
  • Consideration. In order for both parties to be held to the contract, there must be an exchange. The puppy buyer gives money in exchange for a puppy. Compensation may take many forms, and while money is the most common, the contract can call for property, a promise to do or not do something, relinquishing a claim, etc.
  • State the terms. This is the meat of the agreement. State the expectations, the requirements, the guarantees, as well as any other terms or items that should be addressed.
  • Include relevant signatures. Written contracts must be signed by the person or persons to be charged with a breach. A person is charged with a breach when some part of the contract is violated.

It is absolutely essential to include where the contact is to be contested, should conflict ever arise. This is the Choice of Law Clause. Statements along the lines of “This agreement is hereby entered into and wholly executed in the State of Breeder’s State and litigation arising from any possible breach of this agreement shall be adjudicated in the Superior Court of Breeder’s County, Breeder’s State, in accordance with Breeder’s State law.” This provides the breeder with some notion of how the contract can or will be interpreted. Judgments can change depending on which law the court applies, so save money and time and know local law and write the contract in accordance with your state of residence.

State law will always override a contract. To prevent making this sort of error, research your state laws regarding the purchase of property and so-called “Puppy Lemon Laws”. Some states allow 14 days, for instance, for the puppy buyer to have the puppy evaluated by a vet. If the breeder’s contract designates a shorter time period, the state law would rule. States laws also tend to aim at pet stores and larger entities versus hobby breeders, but breeders should investigate their state laws and understand how their kennel or puppy-raising is defined. More information regarding Pet Lemon Laws is available at http://www.avma.org/advocacy/state/issues/pet_lemon_laws.asp

Another commonly overlooked item valuable in contract writing is a notary clause. Have your contracts acknowledged by a notary public, or “notarized”. While many states no longer require contracts be notarized, it could save a lot of hassle. Buyers could potentially deny that they had ever signed the contract or state that the signature was not theirs. A notarized signature eliminates that possibility and saves time in court.

Define the terminology and concepts used in the contract, not only for the puppy buyer, but also for the attorney, arbitrator, or judge that one day may be involved in settling a dispute. For instance, do not only say OFA. Instead, write out Orthopaedic Foundation for Animals (OFA). This should include any and all terminology or jargon special to dogs, dog breeding, dog shows and dog ownership.

Contracts can take many shapes and the only ones that are wrong are those that are illegal! Many breeders use one contract for all their puppies and offer all the same guarantees and assurances regardless of the puppy’s pet or show “quality”. Others have a foundation contract that is then supplemented with separate documents outlining their “Health Guarantee” or impose the “Limited Registration Clause” or even the “Co-Ownership Agreement”. These can take the form of addendums to main contract. Whatever system works for your kennel is the right system to implement.

By writing and using a contract tailored to your kennel, you can improve the likelihood of your puppies finding the right homes and better the communication between yourself and your puppy buyer. Your expectations as a breeder are presented in clear black and white language that the puppy buyer can either agree to or not. And if they choose not to agree, then the breeder is saved the hassle or heartache of unfulfilled expectations and potentially dangerous environments for their puppies. If the puppy buyer agrees, they know exactly what is expected.

The following example of a basic companion puppy contract is not presented as a perfect contract, but rather a place in which to start delving into what kind of contract is right for you. All the basic elements are present. Customize it to your needs and then present it to your attorney for review.

(email me if you'd like a copy of the sample contract)

Written by Jennifer McKemie (originially published in The Guardian, newsletter of the SSMF, 2008)