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February 2014. What proof can the dealer and breeder be expected to provide with regard to the absence of defects in the horse when a claim is made against him by the buyer under warranty? Especially in the case of a horse's bad habits, such as climbing or paddocking, it is fundamentally difficult to provide evidence. If it is no longer objectively comprehensible when a defect first appeared in the horse, this is at the expense of the party who must provide this proof.
In principle, a buyer who wants to make a warranty claim against the seller of a horse has the full burden of proof that the purchased horse was defective at the time of delivery. If a defect cannot be clearly backdated from a veterinary point of view, this proof is often difficult, if not impossible, for the buyer to provide, especially when it comes, for example, to rideability problems, stalling or paddling, problems that can occur at any time and take their beginning. Does it help the buyer in these cases if he bought the horse from a dealer?
A horse purchase that takes place between a buyer acting as a private individual and a breeder or dealer acting as a commercial seller is considered a so-called "consumer goods sale. The warranty cannot be excluded by the professional seller vis-à-vis the private buyer, at most it can be reduced to one year. In addition, the special feature of the reversal of the burden of proof within the first six months after purchase applies in this relationship. Contrary to a widespread misconception, these six months after the handover of the horse are not a deadline that must be met by the buyer and within which he must somehow take action against the seller. This is merely a burden of proof rule: If a defect demonstrably occurs within the first six months after handover, the professional seller must prove to the private buyer that the horse was free of defects at the time of handover. When the buyer finally asserts the defect is irrelevant, this can happen even after seven or eight months. It is only important that he can prove that the horse has shown the impairment within this first half year after the purchase.
If the defect is then a deviation from the condition agreed upon at the time of the conclusion of the contract, which could have been detected at that time, such as an x-ray change that leads to lameness of the horse immediately after the purchase, this is at the expense of the seller. For the latter must prove that the horse is free of defects in the case of a purchase of consumer goods. The x-rays now taken by the buyer within the six months of purchase prove that the horse has a condition within that time. The dealer could now only exonerate himself if X-ray pictures were also available from the time of handover, which would prove that the horse was free of defects. If such pictures were not taken at the time of sale, the dealer cannot prove this.
However, as always, there are exceptions to this rule as well. According to the law, the seller cannot be expected to provide this proof of exoneration if the reversal of the burden of proof is "incompatible with the nature of the defect". With regard to the purchase of horses, this exception to the reversal of the burden of proof has been accepted by case law in each case where it seemed unreasonable to impose the burden of proof on the seller, because the defect in the horse could simply have appeared for the first time at any time. This applied, for example, in the case of a horse's bad habits, such as the "Koppen", which used to be one of the main warranty defects. If this occurs immediately after a purchase of the horse at a riding horse auction, for example, the conclusion cannot simply be drawn in favor of the buyer that the horse was already coupling before the auction purchase (OLG Celle, 22.11.2010, 20 U 8/10). The buyer can at most prove the cribbing over a longer period of time if the horse shows corresponding signs of wear on the teeth. Even in the case of rideability defects, case law has difficulty in requiring the dealer to provide proof of exoneration. Thus, in the case of stallioniness and impetuousness, which were claimed by buyers as defects, the compatibility of these defects with the reversal of the burden of proof was rejected in each case after an expert assessment of the facts of the case. Because with the rising or also with rideability lacks, if these are not to be led back on health causes, it concerns phenomena, which can be released at any time by wrong rider influence, wrong equipment or overloading in the new environment and which can be eliminated on the other hand by purposeful correct rider influence and correction also again. It seems unreasonable to burden the dealer with the proof that the horse did not show these defects until the time of delivery, since these are behaviors of the animal that can typically occur from one day to the next (LG Siegen, 10.06.2011, 2 O 107/09). The court also ruled that this legally possible exception to the reversal of the burden of proof could not be excluded by a clause in a form contract. After all, this is the only correction option provided by the law to prevent unfair results.