Equine law: presumptive evidence in the case of non-conformity
Author: Pierrette Kuipers
On the 3th of December 2013 the court of The Hague judged a case concerning the non-conformity of a dressage horse. Once again, this judgment shows how difficult it is for a professional seller to disprove the presumption of evidence in consumer purchases.
The buyers argued about the fact the horse suffered from ‘kissing spines’ or osteoarthritis, causing severe stiffness problems. At first instance, the claims were rejected by the district court in Rotterdam, because the horse’s condition had not been established. However, the court of The Hague decided on appeal this purchase was a consumer purchase as referred to in article 7:5 of the Dutch Civil Code. This legal provision determines that when a ‘defect’ manifests itself within six months after the purchase and delivery, it is suspected that this ‘defect’ already existed at the time of purchase and delivery (article 7:18 paragraph 2 of the Dutch Civil Code). Then it is up to the professional seller to prove that the ‘defect’ did not exist at the time of purchase and delivery.
Disproving the presumption of evidence
The professional seller was allowed to disprove the presumption of evidence. He tried to disprove by hearing six witnesses. All of the witnesses stated that the horse did not suffer from ‘kissing spines’ or osteoarthritis by the time of purchase and delivery. However, the buyer brought a DVD into court, which shows the horse wasn’t running smoothly, not even when it was driven by one of the witnesses heard by court. The DVD also shows the witness saying that it is not easy to ride the horse due to excessive training because of the upcoming visit from the buyer. The Court of Appeal draws the conclusion that a horse may have to get used to another rider, but the witness was not such a bad rider that this could explain the visible pain of the horse. The seller did not succeed in disproving the presumption of evidence.
Article 6:265 paragraph 1 of the Dutch Civil Code determines a termination for fundamental non-performance. The buyer has to return the horse to the seller and the seller has to pay back the price. However, in this case parties also disagreed about the value of the horse. According to the seller, the horse would now only be worth € 7.000,00 instead of the paid amount of € 26.536,00. However, the Court of Appeal considers the reduced value to be unproven.
In addition the seller is ordered to pay a compensation for the suffered damage. The buyer had to take good care of the horse. This includes storage, feed, water, vet costs e.d. The buyer stated that she had lost an amount of € 200,00 per month for this addition costs, which the court does not consider to be unreasonable.
Do you have any questions about this blog or about equine law? Please contact our equine law lawyer mr. Willeke Krieger (email@example.com)