THE
BREEDER/BUYER RELATIONSHIP:
GUARANTEES
AND ETHICS
By Fred Lanting
(as
seen in Canine Chronicle, 1999)
Fred Lanting, author of the book on HD, also has extensive
experience as a breeder; his first purebred litter was in 1945, and he has produced
hundreds of GSD puppies for the estate guardian, show, and sport markets with
the “von Salix” suffix. He has bred Smooth Fox Terriers, Whippets, and Shibas as well. Retired from the chemicals business, he now
consults, with “All Things Canine” as his business name.
The possibility of
crippling HD manifesting in later months of a puppy’s life or past the dog’s
middle age has been a bugaboo to breeders for a long time. The buyer of a 2- or
3-month old puppy today typically wants some kind of assurance that he is
getting value for his dollar, and has become accustomed to hearing about
guarantees and consumer protection legislation. It is extremely important to
have a written contract or document so that there are few, if any,
misunderstandings about the verbal agreement made at the time of sale. The
contracts usually warranty the purchase against AKC-disqualifying faults
(except in some pet contracts), poor health (with a day or so in which to have
the dog checked by the buyer’s veterinarian), non-registrability,
and crippling hip dysplasia. The buyer has the
responsibility to discover the defect and notify the seller.
There are longer, more
exact differences between the words guarantee and warranty, but all you need to
know about the distinction is that both say something cannot and will not
happen; a guarantee says “But if it does, here's what I will do about it”.
There is the implication that there might be some currently undetected
condition that may become evident in the future. Generally, the guarantee more
often indicates the seller will restore the situation to what it was before,
via refund, repair, replacement, etc. Implied in either word is the promise
that the seller has taken reasonable steps to prevent a problem, but in case it
happens anyway, he will take certain actions, spelled
out in the sales contract.
Guarantees are
tremendously variable. However, no matter what is written, a guarantee is only
as good as the integrity of the seller. As one writer put it, there are so many
things wrong with the typical breeder’s or seller’s guarantees that they aren’t
“worth the paper they’re written on”.
While numerous
guarantees have wording about what the seller promises to do if the dog being
sold turns up dysplastic, most of those statements
are meaningless. Some will guarantee “no HD”, but not give a clue as to what
will be done by the seller if the dog does turn out dysplastic.
It's a “Catch me if you can” type of sale. Others will put any kind of
guarantee on paper but will not honor it when you provide
evidence of the dog being defective merchandise —their excuses will have you
spending thousands of dollars in phone calls, trips for replacement potentials
(some of which are worse than the first dog!), shipping, veterinary expenses,
lawyers’ time, and perhaps you will have sunk a bundle into training or
conformation showing by the time you find out the hips or elbows are bad. You
may be worn down and discouraged to the point of giving up rather than putting
more money into the pot.
Many national breed
clubs have suggested bills of sale or contracts for their members to use, but
they are usually reduced in potential impact to the lowest common denominator
of ideas from those providing the input. It is better to draw up your own
agreement, whether you are buyer or seller. Wording in an agreement or a club
code of ethics, may have this or a similar phrase: “Free of crippling hip dysplasia to one year of age”. Who is to determine what is
crippling? Would a minor or intermittent limp qualify, or would you have to
return the dog (perhaps a great distance at great expense to you and at the
seller’s convenience) so the seller and his vet can make the determination?
What about a dog you purchased for breeding and/or competition whose dysplasia doesn’t show in clinical signs until after the
age stated in the agreement, regardless of how good or bad the radiographs
looked before that age? Some dogs with mild HD or a “borderline” rating may be
crippled to the point of obvious dislike for moving or rising, yet others with
severe HD might be so stoic and bilaterally affected that limping (favoring one side) might not be detected. “Crippling” in
some may be delayed for a few or many years. While most severe cases will show
lameness before skeletal maturity, many will not be apparent until later when
secondary joint disease (arthritis) sets in. Even if the animal does not ever
limp, or is “only” mildly dysplastic, it certainly is
not a good prospect for breeding and passing its genes along to the next
generation.
Other contracts may
warrant against “severe dysplasia” without spelling
out who is to define or diagnose that, or naming the standard by which it is to
be measured. Since most private practitioners read pelvic X ray pictures
erroneously, it may be no warranty at all to have just any vet make that
determination. Better to use recognizable levels of quality or defects such as
delineated by OFA designations of mild, moderate, or severe HD. Or use BVA or PennHIP numerical scores for the hips or other joints.
Sellers, especially
those at some distance, have an advantage over buyers in that the amount paid
for a dog compared to what the wronged buyer would have to pay a lawyer is too
small for most attorneys to bother with. As much as is possible, know your
breeder and have a clearly written sales contract. Check out the seller’s
reputation with previous customers and peers. Find out if the seller is willing
to go beyond the sales agreement to rectify a problem.
If a warranty states
that the seller has the option of replacing any defective dog with one of
equivalent quality out of the next litter, don’t buy! Why would you go back to
the same bloodline or the same careless breeder? Insist on a refund, partial or
complete. Your chances of getting something better from the person who sold you
a lemon are extremely slim. I once bought a breeding/show prospect through a
prominent West Coast judge and official in the GSDCA, found severe HD on her
radiographs, although she didn’t limp until she was 3 years old when she then
“went downhill” rapidly. At the time, I was like most people who call me now
for consultation: unwilling to walk away from the ante after seeing I had a bad
poker hand — I kept wanting to believe that if I put a little more into the
pot, my luck would change with the next card dealt. I learned the hard way,
having put more money into “better” pups but successively coming up with three
more dysplastic dogs supplied by the same judge! It
is often best to swallow hard and start over again somewhere else.
Make sure your contract
and guarantee provide for an OFA or equivalent reading of the hip (or other
joint) films. Make sure it spells out who is to do what and at whose cost, if
the “product” proves “defective” under the terms of the agreement. Make sure
the contract is complete without being overly complicated, for the more words,
the greater the chance of legal loopholes. If you can place a mildly dysplastic dog or have room for it yourself, have the
spay/neuter price built into the contract at the seller’s expense. If you are
concerned that the HD will be too severe for your standards, have the contract
spell out that the seller is to take the dog back. Let him have the dog euthanized at his expense or have him pay your vet in
advance to do it. If possible, the latter option is better, because there are
many unscrupulous people who will take back a dysplastic
dog, breed it, or sell it to another poor soul who will breed it. I see this
sort of thing happening all the time. After all, breeders should be held
responsible for what they produce, and should insure soundness to the maximum
extent. Where there is a known inherited disease in the breed, such as any of
those discussed in this book, guarantees should specifically cover it.
“BOB” Doesn’t Always
Mean “Best Of Breed”
Because of my
availability to fanciers, I am bombarded with questions and requests for advice
on things pertaining to HD, but also to many other canine matters. My small
consulting business is kept busy with the same tales of woe that I have heard
for the past 40 years. Time after time, a puppy buyer will tell me of the raw
deal he got from a “breeder”. Just as I was putting this chapter to bed, one
such tale unfolded. A man we’ll call Bob, who had been building up a
hobby-business of selling GSD pups and training sport dogs, sold what I’ll call
his X litter and started getting complaints as they grew and proved to be dysplastic. Some had symptoms, others had “preliminary
X-rays” that confirmed it. However, the contract guarantee he had was
replacement with an equal-quality pup from a subsequent litter with him
deciding on the parents. The proof of dysplasia would
be a radiograph evaluated as such by OFA between age 24 and 30 months. Nothing
was in the contract about earlier return based on early diagnosis. He bred the
bitch “back-to-back” and had sold the Y litter by the complaints started coming
in. His offer was to replace the X puppies (at two years of age!) with one from
the Z litter, all from the same dam and sire. Now there would be around 25 or 30
pups on the ground, all with very high likelihood of being dysplastic.
There are many unfair
elements to such a contract, as common as it is. The dogs that were definitely dysplastic had to be kept by the buyers until they were
two, and many of these homes just did not have the room for the afflicted dog
plus one that they could raise, show, and breed. That meant the buyer would
have to wait a minimum of four years (two for original, two for replacement)
before his goals could be approached, yet the chances of getting another dysplastic dog were very high, so the buyers were
effectively put out of the game by the seller who had written such a
self-protective contract. I advised the inquirers to not take another dog from
the same parents or even from the same breeder. There is a definition of
insanity that I like: doing the same thing and expecting different results.
The facts that “Bob”
did not take into consideration the hardships he created on his buyers, that he
did not use the best diagnostic techniques to find out the true nature of his
“a”-stamped breeding pair’s hips, that he refused to use common sense in
allowing early satisfaction of legitimate complaints, and that he apparently
put his own expenses and costs ahead of doing what was right for the injured
parties, all these are signs of irresponsibility that we see very frequently.
DO RIGHT: ETHICS
Telling someone else
how to live or what moral standards to use runs the high risk of alienation. If
I sound as though I’m doing that, please understand that I am telling you what
I believe is right “for me and my house”, as Joshua put it. Adopt whatever you
will of these suggestions and interpretations of ethical standards. Is the
contract written in such a way as to promote the betterment of the breed? Is it
also fair to both parties? Make the contract complete without being overly
complicated, for the more words, the greater the chance of loopholes. If you
are the seller, write the contract the way you would want it to read if you
were the buyer. Practice the Golden Rule, in other words. Offer to make things
as right for your buyer as if it were your mother. If you absolutely refuse to
make full refund, at least offer a replacement dog, but make sure it is from a
better breeding. The really good breeder/seller is one who goes beyond the
letter to the intent and spirit of the agreement.
Is Mammon your god?
That is, are you willing to sacrifice reputation and good will on the altar of
money, rather than take a financial loss because a dog you sold proves to be
defective and the buyer’s money should be refunded? Will your children starve
if you give a buyer his money back, with or without the dog being returned? We
all know sellers who have buyers over a barrel because emotional attachments
have been cemented with the defective dog. If you can live
without the dog (else why would you have sold it in the first place!), work out
a compromise to make refund with return of “papers” and proof of neutering.
The right thing to do may be to lose more on making the deal right than the
buyer does. Go further, and if the buyer will part with his defective
pet-family member, find a suitable home or other destiny for the pup at your
own expense.
LEGAL RECOURSE
It is very difficult to
know where to draw the line on what to guarantee, if any limits are to be made
at all. There are hundreds of inherited disorders in purebred dogs, and it is
not practical to cover a high number of them in the sales contract. Not all of
them are of clinical significance, but for those that are, the breeder should
show evidence that he is making every reasonable effort to practice inherited
disease control. Hip dysplasia is one of those
disorders for which there is an abundance of knowledge and freely available information
sources. It should be a relatively easy matter to show negligence on the part
of sellers who have no excuse, and “should have known better”. Yet, because
their novice or careless buyers do not insist on the best guarantees as well as
references, such sellers get away with such crimes more often than not.
Sooner or later the
legal tide will turn against breeders who sell puppies or dogs with genetic
defects; “lemon laws” and prosecution will become the norm rather than the
exception. The costs associated with dealing with a dog that bites someone
because of an inherited faulty temperament or that dies due to a discoverable
genetic disease may come home to the breeder. More than one court case has
already been tried in this direction. One judge found that a breeder was
responsible for the Rottweiler he sold that developed
osteochondrosis, because the disease “demonstrates
breed predisposition.” This case underlines the fact that breeders are
responsible for the stock they produce. When there is a known, inherited
condition or breed predilection, then a breeder has the responsibility to take
all practical, feasible steps to ensure soundness in his “product.” Buyers can
help to make this happen. If communities can get away with passing laws banning
certain breeds or requiring neutering, then they can as well pass laws that
promote prosecution against breeders who ignore the published information on
the genetic problems in their breeds. It requires dog-owning citizens who are
willing to become activists, or are willing to act as advisors to local and
State government officials. Joining American Dog Owners Association would be a
step in the right direction. ADOA’s address is 1654
Columbia Turnpike, Castleton NY 12033.
Talk to a lawyer and
find out what is needed to get your money through small claims court or more
high-powered litigation. Gather details on the disease from websites and vet
school libraries and tell the seller you are giving them to your lawyer, and
that the search for the literature etc. will be added to his bill and the court
costs which he will eventually pay in addition to the price of the dog, the vet
bills, food, etc. incurred from the date of diagnosis. Let your attorney and
the breeder know that you are gathering information on other customers who have
been likewise maltreated, and while it won’t be a class-action suit, it will
certainly increase his chances of getting action from various quarters.
RISK
One thing no seller of
anything is able to guarantee is that he’ll be around tomorrow to honor the contract. Any and all businesses go out of
business at one time or another, and the chances a
disreputable breeder or seller of defective product will do so are somewhat
greater than average. Another reason to act without delay.
PLAYING HARDBALL
What can be done if you
have bought a dog that was “guaranteed” in any way at all, even with the
weakest intimation that you were buying a pup with no defects? I have been
called to testify as an expert witness in legal action when buyers have been “taken”
by sellers who provided defective dogs, with or without a good (or any)
guarantee. Don’t be so naive to think that justice always prevails in court!
More often it is the sharper lawyer who prevails, or the party that puts more
money into the effort if the lawyers are equal. A guilty but recalcitrant
seller may retain a lawyer with little knowledge about dogs and less scruples.
In the discussion
periods following my seminars, the topic of guarantees and irresponsible
breeders often comes up. The same initial advice pertains that does in the case
of lost dogs: Do not wait another day. The faster you act, the more likely the
chance you will be partly successful. For lost dogs, blanket the neighborhood with posters, and tell everybody you can what
to look for. Notify humane societies and animal shelters. When you have been
wronged by a bad breeder, follow the same principles: get the news out fast and
fully. You might want to tell the breeder that’s what you intend, to give him
one last chance to make good. Then post your position on every website you can
find will take the story, write letters to editors of magazines that feature
the breed involved, and write to the ethics committee of his national club
(usually futile, but it does get the word around). Keep telling everybody until
you get satisfaction. You will almost surely hear from others who have been
wronged the same way you have.
In many cases, the best
first option is to return the problem dogs. Be hardnosed. Let the seller worry
about the rest of the vet bills and you work on the contract and refund from a
safe, disease-free home. Just do it. Even if it means tying
the dog to the doorknob and leaving without stopping to argue. With a
defective dog on his hands instead of yours, things usually move a lot faster.
Hip dysplasia
is not the only recognized disease with a primarily inheritable nature; demodicosis (mange) is another. It is hereditary (genetic),
it is in the immune system, and it is recommended to not breed such a dog or
its parents. It is possibly a little harder to spot the carriers, but the
recommendation I usually give is the same: return the defective merchandise,
and fight the legal or public-awareness battles from the position of a
disease-free home. Tie the dog to the door or put it in the fenced property of
the seller, and leave. You are at a disadvantage if you keep the dog; almost
nobody gets his money back that way.
The people in my
audiences and correspondence all ask the same question: “How I can get my
breeder to stand up to the guarantee? (or make things right)” and they often
add something like, “She claims she has been breeding over 35 years so she
should know. Her website has beautiful dogs pictured — lots of award winners.”
You should get a written report from the vets about the strongly heritable
component in the disease (use that word), and broadcast that, also.
Put a copy of the
diagnosis on the door when you leave the dog. If you put the onus on the seller
to take care of the dog, some action will take place. Some of that action may
be what the vets told you to do (euthanasia, spay, expensive treatment, etc),
which will just be more proof that he sold you a lemon.
You have to get tough
and take action; do not just lie down and take it.
Return
Home
Copyright 2001 Fred Lanting, Canine Consulting.
Mr.GSD@juno.com. All rights reserved. Please
view his site Real GSD.
NOTE: A well-respected AKC and Schaferhund
Verein judge, Mr. Lanting has
judged in more than a dozen countries, including the prestigious FCI Asian Show
hosted by Japan Kennel Club, the Scottish Kennel Club, a Greyhound specialty in