A question of height: It’s a judicial neigh for the buyer of a competition pony

  • Insight

16 November 2018

In a dispute about the height of a pony bought for competition purposes, the Sheriff Appeal Court has found that the seller of the pony had neither breached the contract of sale nor made a misrepresentation about the pony’s height to the purchaser. 

The judgment in the case of Morris v Mawson 2018 highlights the need for buyers to ask for an up-to-date height certificate where entry to competition classes depends on the actual height of the pony or horse.

The sale: 128 cm

Connemara pony “Shy Strikes Again” (Shy) was advertised for sale in early 2016 as “128 JA 15 yr old Gelding”.  The buyer was looking for a pony at 128 cm or less for show jumping in a class for which 128 cm was the maximum permitted height.  On or after the date of sale, the seller produced an expired (at end 2015) vet’s certificate showing the pony’s height as 128 cm.  Ponies such as Shy were not expected to grow after the age of eight.

Gold certification: 130.7 cm

After the purchase, the buyer sought a ‘gold certificate’ for Shy.  This would mean that the pony would not need to be routinely measured, as a gold certificate does not expire.  The vets carrying out the inspection for the gold certificate found Shy to be 130.7 cm and not 128 cm.

Court action

The buyer then raised an action against the seller for compensation in respect of (1) breach of contract, and (2) misrepresentation. The sheriff found in favour of the buyer on both points.  The seller appealed.

The appeal

The Sheriff Appeal Court reversed the sheriff’s original decision and found in favour of the seller.

The key issue

At the heart of the matter was that there was no actual evidence on Shy’s height at the date of the contract, i.e. the time of sale/purchase.

Two measurements had been taken – one by a vet some time before the sale, and one by a different vet some time after it.  The Sheriff Appeal Court noted the fluctuations there can be in measuring the height of a pony or a horse.  Ultimately, the appeal court found that where there was a lack of specific evidence as to the actual height of the pony at the time of sale, there was no reason to prefer the evidence of one vet over the other.  In the original court hearing, the first instance sheriff had decided that the evidence of one of the vets could be preferred over the other, and had then preferred the vet who had made the 130.7 cm measurement. 

Advice for purchasers of competition ponies and horses

Shy was bought for the buyer’s daughter to use in competitions with a specific height class. They saw and tried Shy before buying him. But that was not enough to avoid the problems which arose.

Given that the height measurement of a fully-grown equine can fluctuate, there were two particular risks for the purchaser in this sale:

• the measurement of 128 cm was the maximum allowed in the relevant class;
• 128 cm is at the bottom end of the height range for a Connemara pony.

This means that any fluctuation in height was more likely to be upwards than downwards.

In addition to the usual considerations when purchasing a pony or horse, this case highlights the following:

• if the equine needs to be in a particular height class, it’s sensible to require an up-to-date height certificate as a condition of the sale.
• particular care is needed where the advertised measurements are close to the outer limits of the class or of the expected height of the particular breed.
• an annual height certificate may provide some reassurance, but given natural fluctuations in height even for fully-grown equines, that reassurance is limited. This is all the more so where the measurement is close to a limit.
• a pre-sale gold measurement certificate is better than an annual one, but does not completely eliminate any risk because a further measurement can be ordered by a Joint Measurement Board Steward.

Obviously, risks cannot be completely excluded, but they can be minimised or taken proper account of when weighing up whether to purchase a particular animal.

Advice for purchasers and sellers

A contract of sale for a horse or pony does not need to be in writing to be valid, but parties may choose to use writing as it provides clearer proof of the agreement. Good drafting of such contracts is essential, especially as it can be seen from this above case that they may be relied on in court.

One of our team of horse law experts can assist with this.

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