unhealthy dog

[xcalvinx]

We live in Texas. We purchased a dog from a breeder almost a year ago. Since that time she has had numerous health issues including hip dysplasia. The breeder is unwilling to cooperate in the return of the animal or reimburse for vet fees due. The contract says only that they "guarantee against hereditary or congenital defects that result in death of pet for 1 year from date of purchase". If we had not treated the animal for her problems she would probably have died. An attorney told me that even though she has this in her warranty, there is still an implied warranty that the animal was purchased as healthy. Would I have a case against the breeder in small claims court?

 

[I AM ALWAYS LIABLE]

My response:

I believe your attorney is wrong. The attorney is talking about the Uniform Commercial Code, and one of the laws thereof states, in essence, that there is an "implied warranty of fitness" for a "thing" sold; e.g., it must perform, work, and operate as it was designed, or meant to perform, at the time it is sold.

No one can predict how a dog is going to evolve in terms of it's growth or health.

You also have to keep in mind that a dog is "personal property" - - like your truck, or your television. In the law, there is no difference.


Fitness for a Particular Purpose (U.C.C. §§ 2-314 & 2-315)

U.C.C. §§ 2-314 and 2-315 govern the imposition of this implied warranty. § 2-315 provides that the warranty of fitness for a particular purpose is implied where: (1) the seller at the time of contracting has reason to know any particular purpose for which the goods will be used; and (2) the purchaser is relying on the seller’s skill or judgment in selecting goods to meet that purpose.

Revocation must occur within "reasonable time"

U.C.C. § 2-608 provides that revocation must occur "within a reasonable time after the buyer discovers or should have discovered the ground for it . . . ." Revocation is not effective until the buyer notifies the seller. Courts consider several factors, including the difficulty of discovering the defect, the terms of the contract, and the course of performance after the sale and before revocation.4 If the conditions listed above are met, the aggrieved purchaser should consider immediately issuing a notice of revocation to satisfy the notice requirement.

UCC Section 2-608 revocation

U.C.C. § 2-608 allows a party to revoke acceptance of a good within a reasonable time when the defect in the good substantially impairs its value to the buyer. The same provision, however, places several conditions on such revocation: (1) the good must not have been substantially changed; (2) the buyer must have accepted the good without discovering the defect; and (3) the buyer’s acceptance must have been reasonably induced by the difficulty of the discovery before acceptance or by the seller’s assurances.


You see, the problem here is that you went ahead and "repaired" the dog yourself, and accepted the results. Had you not "repaired" the dog, and notified the seller of the disease that would likely kill the dog, then you would have been entitled to your refund.

So, I believe the written warranty is controlling; i.e., the dog is alive and hasn't died from anything congenital.

IAAL

[Edited by I AM ALWAYS LIABLE on 06-09-2001 at 04:22 PM]

 

[xcalvinx]

Hip dysplasia is the straw that broke the camel's back. We have not had that repaired as yet until we see what we can do legally. Does that make a difference?

 

[I AM ALWAYS LIABLE]

Hip dysplasia is the straw that broke the camel's back. We have not had that repaired as yet until we see what we can do legally. Does that make a difference?

My response:

I don't believe it makes a difference under the above U.C.C. laws.

Like I said, no one knows how an animal's growth or health is going to evolve as the animal ages. We can make "educated guesses" based upon the breed and our own experiences with dogs, but that's not 100%.

You see, another problem here is that you may have chosen a dog breed that has known predilections for certain illnesses or disease; e.g., dysplasia.

It was, therefore, also incumbant upon you to do a little studying of the particular breed you chose, in order to find out what might lay ahead, and to make an informed decision whether or not to accept such health possibilities.

So, in summary, I believe the "reasonable amount of time" has passed as envisioned under the U.C.C.; that the written warranty is controlling; and that you may, in fact, be partly to blame for your monetary losses for the way things have turned out - i.e., by not studying about the breed before purchase, you accepted all of the problems associated with this breed of dog when you made the purchase.

IAAL

 

[xcalvinx]

I understand your position. Our dog is a Boston Terrier...a small breed which is not predisposed to having hip dysplasia particularly at such a young age. In fact we chose the Boston Terrier because of it's good health characteristics and temperament.