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Any contract experts or Dog ownership experts. Please Help!!



O

ozseagull

New member
Jun 27, 2013
772
I will try and keep this as short as possible.

I got a male dog about 18 months ago. The previous owner was an elderly lady who was finding dog ownership too difficult. So she put the dog up for adoption.

After she held interviews with numerous families etc she chose us and she gave us the dog for free. When I took the dog from her we signed a contract which had 2 stipulations. The first stipulation was that the dog was not for sale in the future. If we wanted to re home him for any reason we would return him to her for her to rehome him.

Stipulation 2 was that we would keep him in tact as a male, as per the breeders and her request.

After we owned him for about 3 months I emailed her with an update on his progress and offered if she would like to see him etc. I received no reply so assumed she no longer wanted contact.

About 6 months later he suffered from repeat urinary infections and discharge. Upon Vets advice we got him neutered. This resolved all of the symptoms and he has been fine since.

A couple of weeks ago she turned up at our house unannounced to visit him. We informed her he had an operation as the vet recommended it etc etc.

She didn’t say anything just kept commenting on how happy he looked.

Then today we received a recorded delivery letter from her saying we have breached the contract and she wants the dog back.

To complicate matters she said she understand it would upset my children so she says… we no longer own the dog. However we can borrow him for 9 months of the year. We have him from October to July. She expects him at her house on 1st July then she will return him to us on 1st October!!!!!!

I’m not making this up!

My argument is I acted upon Vets advice and the best interests of our dog. Her argument is I went against nature and the breeders wishes and breached the contract.

Simple questions. Is the contract binding? and do I need to give the dog back?

The kids will be devastated if he has to go.

Any sensible advice please!!
 






Lord Bracknell

Lord Bracknell

On fire
Jul 5, 2003
39,499
104 Upper Grosvenor Street, Mayfair
Does the "contract" explicitly state that the penalty for a breach of the non-neutering condition is that you must return the dog, or is this a penalty that only applies in the case of you putting the dog up for sale?
 


O

ozseagull

New member
Jun 27, 2013
772
Lord Bracknell said:
Does the "contract" explicitly state that the penalty for a breach of the non-neutering condition is that you must return the dog, or is this a penalty that only applies in the case of you putting the dog up for sale?
Click to expand...

Its says any breach of the stipulations will mean the dog will need to be returned to original ownership. Ie if I get him neutered I breach the contract and ownership returns to her.
However, would doing it on medical grounds over rule the above?
 


Tricky Dicky

Tricky Dicky

New member
Jul 27, 2004
13,558
Sunny Shoreham
I doubt she has a leg to stand on. Sounds like she's missing him but can't afford to keep him full time, so came up with this scheme. If you want to keep her sweet, and no real reason why you should, unless you just want to be nice, you could offer to let her walk him whenever she wants to, provided it's convenient for you.
 




hans kraay fan club

hans kraay fan club

The voice of reason.
Helpful Moderator
Mar 16, 2005
61,279
Chandlers Ford
Instead of giving her 'custody' 3 months per year, offer her 2 weeks - exact dates to be confirmed when you've booked your summer holidays...
 


The Antikythera Mechanism

The Antikythera Mechanism

The oldest known computer
NSC Patron
Aug 7, 2003
7,793
Were any penalties included in the contract in the respect of a breach of stipulation 2? She alleges that you are in breach of contract, but any contract disputes are subject to adjudication by a third party, and acting on a Vets recommendations to relieve suffering would not, in my opinion, constitute a breach, as the stipulation was driven by a breeders desire to make money rather than the interests of the dog.
 


T

tricky

Member
Jul 7, 2003
229
Reigate
I'm not totally sure but I think this would link with the animal welfare act - if the vet has stipulated that the dog needed castrating for health reasons then it is possible that an owner who refused that could be in trouble for animal cruelty.
 




drew

drew

Drew
Oct 3, 2006
23,048
Burgess Hill
I'm no expert on contract law but isn't there some kind of get out for unfair terms? The only criticism would be that you didn't advise about the need for the operation. Had you done so at the time she could then have been involved in the decision (only a fool would go against vets advice!). The fact that you sent one email might mean nothing as you don't know whether or not she received it? Could be worth getting something from the Vet confirming that the neutering was necessary.

Might be worth getting some advice from a solicitor. Probably cost but then you need to weigh that up against the heartache from the kids if she does take the dog. You could always suggest that if she wants the dog for a quarter of the year then she should stump up a quarter of the vets bills!!!
 




G

Gwylan

Well-known member
Jul 5, 2003
31,336
Uffern
Lord Bracknell said:
It all comes down to whether or not you have a fido-ciary duty to consider the dog's health.

You could check this out with a Chum or Pal. I'm sure they could give you a Lead.
Click to expand...

It sounds more like a case for Ruff Justice
 




Kazenga <3

Kazenga <3

Test 805843
Feb 28, 2010
4,870
Team c/r HQ
If it was upon vets advice and of paramount importance to the dog's health you will be fine. Would be careful about offering to let her take the dog for walks as if she so chose to walk the dog back to hers it could prove very difficult to get it back again...
 




Westdene Seagull

Westdene Seagull

aka Cap'n Carl Firecrotch
NSC Patron
Oct 27, 2003
21,003
The arse end of Hangleton
Just to start - I'm not a lawyer !!!

You could argue that the contractual term could be considered unfair in these circumstances and so is null and void.

If I were you I'd call her bluff. I assume the recorded delivery letter was from her not a solicitor ?

I'd write back firmly but politely saying that you put all reasonable effort into adhering to the terms of the contract and have therefore adhered to the spirit of the contract. It is unreasonable to expect the dog to suffer just so you could adhere to the contract.

I'd tell her that you have acted in the best interests of the animal and if she doesn't agree then she should initiate a Small Court Claim so a judge can decide. I'd bet a hefty amount of money she won't do that ! If she does then offer to go to arbitration ( it looks good on you if you've attempted to solve the problem rather than waste court time ). At that arbitration take an expert witness - your vet.

To me it just sounds like she's changed her mind and you've given her the get out of jail free card.

PS - don't let her have any access to the dog.

EDIT - any remedy should only put the other party back to where they would have been if the contract hadn't been broken. So short of sticking his balls back on I'm not sure what she can expect. Handing him back doesn't remedy the contractual breach.
 
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B

Brian Fantana

Well-known member
Oct 8, 2006
7,230
In the field
Again, I'm not a lawyer but I have had a fair amount of experience with contract law.

The first issue is whether a binding contract exists. The previous owner offered to hand over the dog to the new owner. The new owner accepted this offer. The handing over of the dog acted as consideration. As a result, a binding oral contract was formed between the parties.

The issue here is the written 'contract' which contained the two stipulations. The new owner stated that he signed the 'contract'. Was this also signed by the previous owner? If not, the written contract and it's terms would be unenforceable. In which case, the new owner cannot be forced to return the dog.

If the written contract was signed by both parties then it will operate as a binding contract. In this case, the neutering of the dog is a breach of stipulation 2, which is an express term of the contract. However, not every breach of contract will enable a party to terminate or 'rescind' the contract.

A party can only rescind a contract for breach where the breach was so substantial and fundamental that it defeats the objective of the parties in making the contract. This is called a 'repudiatory breach'. In other words, the breach must go to the root of the contract.

It is clear that the true objective of the parties in making the contract was to place the dog in a good home. The objective was not to protect the dog's virility so that he could sire puppies for the previous owner or the breeder. The neutering was carried out to ensure the dog's health and well being. This is in line with the true objective of the parties. While the neutering did breach an express term of the contract, the breach did not go to the root the contract, i.e. there has not been a repudiatory breach.

Since there was no repudiatory breach, the law will not allow the previous owner to terminate the contract. As a result, my opinion is that the new owner is entitled to keep the dog and cannot be forced to return the dog to the previous owner.
 


S

scooter1

How soon is now?
Sep 12, 2006
4,727
Past the Leisure Centre, left at the lights
I have absolutely no idea about the law on this sort of thing, but tell her you'll see her in court if she wants to follow this through. From a moral perspective, you acted in the dogs best interests, and the fact that she didn't respond to your first 'update' email, will work in your favour. As mentioned above, she's missing the dog, but she opted to give it up. So tough titties on her.....
 


Everest

Everest

Me
Jul 5, 2003
20,741
Southwick
Write to Jeremy Kyle.
 


Worthingite

Worthingite

Sexy Pete... :D
Sep 16, 2011
4,959
Worthing
End of the day, it's the best interests of the dog that should come first- as she's already said he's happy and content with you- moving him so frequently will upset him. Tell her to do one.
 






B

Brovion

Well-known member
NSC Patron
Jul 6, 2003
19,362
Not a lawyer, but I studied law at college. This might come under the heading of a Social and Domestic Agreement. Broadly speaking the contract will only be legally enforceable if both parties intended it to be so when they signed it. ('Intention to create legal relations' I think is the phrase). Sometimes you'll see a clause about 'both parties agree to be subject to English Law' or something which may be sufficient to trigger that. If that's not in your contract basically I think you can tell the batty old fruitcake to piss off and there will be nothing she can do.

Alternatively I could be talking out of my arse, but hey, it's my two-pennyworth FWIW
 


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