thebreederbuyer

The Breeder/Buyer Relationship Guarantees and Ethics

An article devoted solely to puppy guarantees, giving guidelines on what to look for in a good guarantee, and how to deal with problems when they arise.

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 honour 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 sellers 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 (favouring 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 sellers 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 sellers 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 euthanised 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 time 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 buyers 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 web sites 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 honour 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 neighbourhood 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 web site 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.

n many cases, the best first option is to return the problem dogs. Be hard nosed. 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 teste 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.

[ 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. His e-address is mailto:Mr.GSD@hiwaay.net, appropriately. ]