Equine Law Blog

Can You Buy and Sell an Unborn Foal?

A mare is in foal, and the mare/prospective foal owner sells the foal months before the foal is born.  These arrangements occur with some frequency in the equine industry. In these unique arrangements, a carefully worded contract is important for a few reasons:

First, because of the many foreseeable expenses in the months before, during, and after the time the foal is born, the contract can plan for them.  The contract can also spell out who is responsible for payment if problems should occur.  For example, if the foal needs special veterinary care, such as surgery, who will pay the veterinary fees?  Who decides when to contact the veterinarian?

Second, the applicable state law might demand that the arrangement be in writing, especially if the transaction is meant to last for an extended period of time.  An example of these laws is the “Statute of Frauds.”  Most states have a Statute of Frauds on the books, which requires that if it will take more than a year between the time when the contract is made and when it is performed, the contract needs to be in writing before it can legally be enforced.

New York’s statute of frauds, for example, generally requires a written agreement if the agreement, by its terms, “is not to be performed within one year from the making thereof.”  This law was, in fact, at issue in a dispute between parties to an unwritten contract to board and breed mares and foals.  When the parties took the matter to court, a judge ruled that the statute of frauds prevented the unwritten contract from its obligations, including horse breeding, were meant to be spread out longer than one year.

Contracts can include several elements in these unique sale arrangements. For example:

• acknowledgment of the sale of the unborn foal
• when the seller can take possession of the foal
• details regarding costs associated with the mare and the foal and who will pay for them, such as veterinary fees, vaccinations, pre-natal care, post-natal care, extra boarding or keeping costs until the seller takes possession
• any requirements for the care of the mare and/or foal, such as special feed and/or feed supplements that must be provided and who will pay for them
• the standard of care that the buyer (mare owner) must adhere to before, during, and after the time the foal is born and while the foal is in the mare owner’s care, custody, and control
• if the foal is to be registered, agreements for the seller to cooperate in breed registry documentation that will reflect the buyer as the foal’s owner of record, and who will pay the registration fees
• if the mare encounters serious problems in the pregnancy or delivery of the foal, who (if anyone) will pay special veterinary costs
• if the mare loses the foal or fails to generate a healthy live foal, whether the buyer is entitled to a refund or whether the contract will extend another season so that the mare can be re-bred, and who (if anyone) will pay the stud fee or associated fees to re-breed the mare
• who must transport the foal after it is weaned and who pays shipping costs
• liability release (where allowed by law)

These are just some of the many elements for a contract.  For the best protection, a knowledgeable lawyer should be consulted.  If you have any questions, please let me know.

Categories: Sales/Disputes