Sale of Companion Animals by Breeders and Retailers
- Rebecca F. Wisch
- Animal Legal & Historical Center
- Publish Date: 2005
- Place of Publication: Michigan State University
To most Americans, companion animals become more than just animals in the home. Cats, dogs, and other companion animals often occupy the status of beloved family member to most of their human guardians. Despite this status most of these animals gain in the home, they are legally considered mere goods or commodities during the sales process. Indeed, companion animals have no independent status or personhood in the legal world.
The term "goods" is not necessarily meant to downgrade companion animals' status as sentient beings, but rather to afford buyers and sellers certain rights and responsibilities in the transaction. In fact, due to their unique and valued status, many states have recently added further laws to protect buyers of companion animals. These laws, while not present in every state, buttress the rights of many companion animal purchasers and are aimed at indirectly regulating the insidious "puppy mill" industry.
This discussion will present an overview of general contract law related to pet sales as well as the rights and remedies of buyers at common law. Further, the state laws pertaining to the sale of companion animals will be examined as well as any relevant cases under these laws. Finally, the paper will highlight some new concerns facing buyers, especially when shopping for companion animals over the Internet.
A. Contract Law as it Relates to Pet Sales, Generally
Buying a pet from a retail pet store or pet breeder involves more than the question, "How much is that doggy in the window?" In fact, the sheer emotional pull potential buyers experience when shopping for an animal companion often puts otherwise savvy consumers at the whim of the seller. The buyer in such instances may be in an unequal bargaining position, as the yips and mews and puppy-dog eyes distract some from thoroughly examining the "goods." Entering a contract to purchase a pet from a merchant (specifically defined in Part B) gives certain rights to each party in the contract. Thus, while classifying dogs and cats as mere "goods" in these transactions may seem insensitive on the part of the law, it does provide the heart strung consumer with added protections in the contract for purchase.
As with all other sales of goods, the Uniform Commercial Code (the UCC) is the appropriate starting point. The term "goods" applies to all things that are moveable at the time of identification to the contract for sale. UCC 2-105. To the layperson, this legal definition may seem to actual cloud the meaning of what is an ordinary term. But, the definition is simply meant to distinguish goods from intangible items that can be sold (money and investment securities, for example) or services that can be performed under a contract. Further, this definition itself excludes contracts for the sale of land or realty.
With the sale of goods, comes what is termed an implied warranty of merchantability. All goods sold by a merchant come with this warranty, which simply means that the goods are fit for the ordinary uses for which they are sold. Historically, the implied warranty applied to the sale of agricultural animals used for work or food (i.e., horses, cattle, and the like). In essence, these types of animals were the only ones thought to have any commercial relevance. Most of the cases referenced in the UCC thus refer to these types of animals. Dogs and cats were not considered to have value akin to agricultural animals. In recent years, not only has society elevated the companion animal to the level of family member, but the advent of dog breeding as a commercial enterprise has further raised the value of many pets above many agricultural animals.
That being said, it is important for purchasers of pets to understand the UCC and how its provisions govern the sale of companion animals. This UCC endows sellers and purchasers of dogs or cats with certain remedies, or legal rights, in the event a seller breaches the express or implied terms of the contract. While a thorough discussion of contract law is beyond the scope of this discussion, suffice to say that such contracts may be express (written with specific terms) or even oral. There are several legal restrictions to oral contracts (the main one being the Statute of Frauds, which, among other things, limits oral contracts to the sale of goods (e.g., not land) or performance of service contracts that can be completed in one year’s time). When a person buys a dog from a merchant breeder or pet dealer, that seller is subject to the provisions under the UCC regardless of whether the parties had an explicit written contract.
With that background in mind, it should be understood that the UCC’s protections for the sale of goods apply only to sales by merchants. Again, under the UCC, the term merchant has a particular definition. To gain protection under the UCC in a pet sale, a buyer must purchase the dog from a merchant.
Under UCC Section 2-104(1), merchant is defined as:
a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.
UCC 2-104. A merchant could be a supplier of products, shopkeeper, or dealer in specialized goods. In terms of the sale of animals, merchants would obviously be retail pet stores, professional breeders, and entrepreneurs who routinely sell animals. This begs the question: how many dogs or cats must one sell to be deemed a “merchant” under the UCC?
As most in the legal field are fond of saying, the answer will always be a factual question determined on a case by case basis. The New York case of Nuijens v. Novy, 144 Misc.2d 453, 543 N.Y.S.2d 887, 10 UCC Rep.Serv.2d 1179 (1989), does provide some direction. In Nuijens, a plaintiff brought a Small Claims Court action seeking the sum of $254.63, after a licensed veterinarian found the dog she recently purchased was unfit according to Article 35-B of the General Business Law of the State of New York. Specifically, the plaintiff sought damages under two alternate theories: violation of the sale contract's express warranty and violation of the implied warranty of merchantability.
The contract of sale provided a five-day guarantee that if a veterinarian examined the animal during those five days and found anything wrong with the animal, the animal could be returned and plaintiff would have her purchase money refunded. Plaintiff took the dog to a veterinarian who found that the dog suffered from what was initially thought to be a minor urinary tract infection (it later became a more serious health issue). As a result of the veterinarian's assessment, plaintiff decided against returning the dog within that five-day time frame. At trial, plaintiff argued that Section 742 of the General Business Law expanded the contractual time frame to fourteen days to return an unfit dog to a pet dealer.
Pet dealer has a specific meaning under the state code. The court found that defendant, who sold only one litter of puppies, did not qualify as a pet dealer to fall under the ambit of the statute. In addition, the court noted that plaintiff elected to forgo the express warranty by retaining the dog. While plaintiff failed to meet the requirements under the New York provisions, the court considered the application of the UCC's implied warranty of merchantability. Again, the court found defendant's sale of one litter was not enough to consider her a "person who deals in goods of the kind" to fall within the definition of merchant under UCC Section 2-314. Id.
While Nuijens is exclusively a New York holding and has limited value as a small claims case, the reasoning is sound. Few courts will be inclined to hold a person who sells one litter of puppies or kittens out of his or her home a merchant. Moreover, any expansion of buyer’s rights under state laws governing pet sales will also be inapplicable if that statutory definition resembles New York's. This is not to say buyers cannot attempt to recover under traditional contract law principles. But, out of fairness, a court will not hold a seller of an unexpected litter of kittens to be a merchant who gives an implied warranty of merchantability on his or her goods.
Merchants always provide one type of warranty in the sale of goods; that is an implied warranty of merchantability. Implied warranties are just that – warranties based on the factual situation of the transaction. No other language is necessary to bring this warranty into being because it exists at the outset of the transaction. The goods must be fit for the ordinary purposes for which the goods are used. UCC 2-314. This meaning is derived from the usage of the goods in that particular trade.
The implied warranty of merchantability under UCC 2-314 provides that unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale provided the seller is a merchant with respect to goods of that kind.
The warranty arises independently of the sales contract and is imposed by law. Moreover, such warranty may arise not only in connection with a sale, but also in connection with a contract to sell; and it may arise not only when the purchase is made by the buyer for his own use, but also when the purchase is for resale.
35 A.L.R.2d 1273, Measure and Elements of Recovery of Buyer Rescinding Sale of Domestic Animal for Seller's Breach of Warranty, M. O. Regensteiner. Thus, an individual who buys puppies to train as hunting dogs and later sell to others is protected under the UCC.
Traditional examples of goods that fail to meet this implied warranty of merchantability could include shoes whose heels break off under normal use, soft drinks containing particles of glass, or shotgun shells that prematurely explode. Bradford Stone, Uniform Commercial Code in a Nutshell, 59 (1995). With regard to companion animals, the “ordinary purposes for which they are used" may not be so clear or may depend on the reasons why a buyer purchases a dog or cat. For example, a buyer who purchases a dog for breeding purchases differs from one who purchases a dog for companionship alone. The factual situation determines the extent of the warranty.
Clearly, any sale of a companion animal would carry with it an implied warranty that the animal is healthy and has no apparent deformity. A dog for sale at a pet shop with an obvious debilitating congenital disease would not pass without exception in the trade nor would one suffering from an extensive parasitic infection. This is true whether the buyer seeks a breeding animal or a companion. In Brown v. Faircloth, 66 So.2d 232 (Fla. 1953), a buyer sought to rescind a contract involving sale of bird dog. While the case was premised on the express warranty that the dog was a bird dog of a high-caliber, that warranty also carried with it the implied warranty that the dog was physically healthy. Since the dog was found to have a serious case of heartworms at the time of sale (which hindered his ability to perform field dog trials), the seller breached both the express and implied warranties of sale. Indeed, the court observed:
But, as has been heretofore noted, the case was not bottomed upon that theory, but upon the theory that the defendant expressly warranted the dog to be a 'three-hour dog,' and that this express warranty necessarily carried with it and included within its scope the implied warranties that the animal was sound physically, was finished in his training, and was capable of running three-hour races in major field trials with such speed and finish as could be reasonably expected to win; that such an animal had to demonstrate the highest attributes of speed, range, nose, style, bird-finding proclivities, training, and stamina.
Id. at 234.
Thus, express and implied warranties were not mutually exclusive. This case does underscore the notion of freedom to contract; purchasers should be aware that an express warranty may override any implied warranty of merchantability. An express warranty understood and agreed to by the buyer may cancel any implied warranty inherent in the contract. Suffice to say that all contracts for the sale of companion animals by merchants carry with them implied warranties of merchantability if not expressly altered. Some of those contracts may further warrant the animal for a specific quality or purpose. The factual situation and the contract itself will determine the extent of the warranties. As the maxim goes, one must first look to the contract.
Even if a contract has not modified the preexisting implied warranty, a buyer must prove that the goods in question are unfit. In essence, he or she must show that the goods would not pass without exception in the trade. With companion animals, this question may not be so readily apparent. After all, a potential buyer may overlook what would be deemed a "flaw" in a dog show in favor of a dog with a good personality. Health issues that threaten the companion animal's life or pose a threat of contagion to other animals or even humans will usually make the animal unmerchantable regardless of the pets's purpose. Such an animal would not pass without exception in the pet sale trade.
Implied warranties can also arise from the course of dealing or usage of trade. Course of dealing simply means that a sequence of previous acts or conduct between the parties involved has established a common basis of understanding for a particular transaction. UCC 1-205(1). Usage of trade refers to those public customs in business transactions that are known to both parties. Such a situation can arise with the obligation to provide pedigree papers to evidence conformity of the animal to the contract in the case of a pedigreed dog or blooded bull. UCC Sec. 2-314, Comment 14. A buyer does not generally rely on a seller's assertions of pedigree but rather demands proof of registry in these circumstances. Thus, any seller refusing to supply such proof would violate the usage of trade in selling pedigreed companion animals.
With regard to companion animals, the most obvious implied warranty a merchant provides is that the animal is healthy at the time of purchase. However, as noted above, the sale of purported pedigreed pets may also imply proof of pedigree by papers (but note that proof of pedigree does not itself warranty fitness of the animal. In fact, the American Kennel Club expressly states this on its website. See, http://www.akc.org/reg/about.cfm). Companion animals may also carry with them an implied warranty for specific qualities like hunting prowess or breeding capabilities. In fact, most early cases dealing with companion animal warranties limited the application to hunting dogs or other commercially viable animals. For example, a buyer of a dog brought an action against the seller to rescind the contract of sale on ground that the dog, purchased by buyer to be a stud, was sterile. The buyer contended in his petition that “defendant sold said dog to plaintiff to be used by plaintiff for breeding purposes only; that defendant stated to plaintiff the pedigree of said dog and represented that said dog was in good physical condition, without blemish, and would produce pups of unmatchable strain and quality if mated with bitches of good strain and pedigree.” Balch v. Newberry, 208 Okla. 46, 253 P.2d 153, 154 (1953).
The Oklahoma Supreme Court, affirmed the judgment for rescission of the contract, but modified it to disallow damages. Id. In essence, the court held that the buyer could only recover under one contract theory:
It is undisputed that the dog proved to be sterile and was therefore of no value to the purchaser for such purpose. The dog being of a defective quality, plaintiff was entitled to rescind the contract of sale after his election to so do. Thus, invoking the rule that where a sale of personal property is rescinded for defective quality, the purchaser can recover what he paid under the contract and expenses necessarily incident thereto, but cannot, in addition, recover damages for the breach of the implied warranty of quality.
Id. at 156. Crucial to the court’s decision was the fact that defendant held himself out to be in the business of breeding and raising pedigreed dogs and that buyer relied upon that knowledge in purchasing a stud dog.
Similarly, a New York court held that a poodle with one undescended testicle would not pass without objection in the trade. The poodle was determined not to be "merchantable" within meaning of UCC. Dempsey v. Rosenthal, 121 Misc.2d 612, 468 N.Y.S.2d 441 (1983). In Dempsey and Balch, the dogs were sold specifically as breeding dogs. An action by a buyer in such circumstances could fall under either an express warranty theory if the seller warranted the dogs’ fertility or an implied warranty of merchantability. A seller who holds him or herself out as a producer of stud dogs warrants the dogs for breeding purposes and thus warrants his or her goods.
In addition to sterile stud dogs, a Florida court also found a dog who was expressly warranted to be a trained bird dog for field dog trials, but failed at trials due to health problems was unmerchantable. While the court observed that the seller in Brown v. Faircloth gave buyer an express warranty of merchantability, the breach by seller still allowed buyer to rescind the contract. 66 So.2d 232 (Fla. 1953).
The previous cases focused more or less on the commercial aspect of the companion animals. A recent New York case suggests that a dog may be unmerchantable if she fails to meet her breed size standard. In a highly entertaining 2005 small claims case from New York, a claimant sought to recover the purchase price of her dog, Little Miss Muffet. Claimant contended that Muffet was supposed to be a "teacup dog," but at eight pounds, she was well above the five pounds that is considered the upper weight limit for a "teacup" Maltese. Testimony established that this weight difference resulted not in diet or other acquired conditions, but from genetic make-up. In fact, plaintiff paid an additional $1,000 above the standard $1,500 to purchase the smaller variety of Maltese from the kennel. O'Rourke v. American Kennels, 7 Misc.3d 1018(A), 801 N.Y.S.2d 237 (Table), 2005 WL 1026955 (N.Y.City Civ.Ct.), 2005 N.Y. Slip Op. 50656(U) (Unpublished).
The court found that Miss Muffet constituted a “non-conforming good” under Article 2 of the UCC and awarded plaintiff the differential in price (but not the full contract price she sought). The court keenly observed that plaintiff had bonded with Miss Muffet and did not seek to revoke her acceptance of the “good” in exchange for the purchase price. As the court put it, “[t]he appropriate resolution is to allow claimant to retain Muffet and to recover the $1,000, plus applicable sales tax, that she overpaid as a result of defendant's misrepresentation.” Id. The court's decision carefully dissected the implied warrant from the contract's express warranty. The court denied plaintiff’s claim for veterinary expenses resulting from Muffet’s knee condition. The court found that the condition developed after the warranty protections expired in the purchase agreement. Further, the warranty expressly excluded reimbursement for veterinary fees and instead offered a replacement remedy (clever on the part of the kennel, as most owners would have bonded with said animal prior to the expiration of the warranties).
One case does suggest that recovery for breach of an implied warranty can be based on the more ordinary circumstance of an unhealthy dog. In Saxton v. Pets Warehouse, 180 Misc.2d 377, 691 N.Y.S.D. 872 (1999), plaintiff purchased a dog that was unhealthy and died soon after the purchase. The court held the plaintiff was entitled to recover damages under the requisite section of the state's Uniform Commercial Code on the theory that the seller breached the implied warranty of merchantability. The court specifically found that the buyer was not limited to the remedies provided by statute governing sales of animals. Part and parcel of this decision was the fact that the dog came within definition of "goods" as set forth in the UCC and seller was a "merchant" under the UCC. Id. (Note that in Texas, a plaintiff whose cockatoo died three weeks after he purchased it from a pet shop, failed to prove by a preponderance of the evidence that the cockatoo was diseased at the time of purchase and that its condition caused its death. Thus, the court held that the plaintiff failed to prove that any implied warranty of merchantability was breached. Bormaster v. Henderson, 624 S.W.2d 655. (App. 14 Dist. 1981).
Finally, as an interesting note on the merchantability of pets, one author has speculated on a cause of action for the emotional or behavioral aspect of companion animals. While physical defects may or may not be ascertainable, many animals sold under “puppy mill” conditions routinely suffer from emotional trauma:
Additionally, many dogs from pet stores suffer not from physical infirmity but rather from behavioral disorder. One could well imagine the difficulty in attaching an implied warranty to the behavior of a dog, a trait that varies widely not only from dog to dog, but breed to breed.
Adam J. Fumarola, With Best Friends Like Us Who Needs Enemies? The Phenomenon of the Puppy Mill, the Failure of Legal Regimes to Manage it, and the Positive Prospects of Animal Rights, 6 Buff. Envtl. L.J. 253, 282 (1999). To date, no case has apparently taken on that novel legal issue. Such an action would involve serious issues of proof as well as a difficulty in applying an appropriate legal remedy.
The buyer of a non-merchantable dog may receive little consolation in the remedies available to him or her. This is the often the crux of these type of cases; what is a just reward where the buyer has already bonded with his or her new animal companion? Should he or she be forced to part with a new member of the family? Significantly, how can a deviation from traditional contract remedies (e.g., rescission and return of the goods) be fair to both parties?
The cases in the previous section demonstrate courts are beginning to recognize the unique status of companion animals as “goods.” An unfit companion animal is technically a non-conforming good, subject to return to the seller. This is often impracticable or unthinkable to many buyers.
Under the UCC, purchasers of diseased or otherwise “unfit” animals are generally limited to return of the contract price. However, as noted above in O'Rourke v. American Kennels, 7 Misc.3d 1018(A), 801 N.Y.S.2d 237 (Table), 2005 WL 1026955 (N.Y.City Civ.Ct.), 2005 N.Y. Slip Op. 50656(U) (Unpublished), the court awarded plaintiff the difference of $1,0000 in purchase price for a “teacup” Maltese dog, where plaintiff’s dog grew to well above the five pound weight limit. The court found that Miss Muffet constituted a “non-conforming good” under Article 2 of the UCC and awarded plaintiff the differential in price (but not the full contract price she sought). The court keenly observed that plaintiff had bonded with Miss Muffet and did not seek to revoke her acceptance of the “good” in exchange for the purchase price. As the court put it, “[t]he appropriate resolution is to allow claimant to retain Muffet and to recover the $1,000, plus applicable sales tax, that she overpaid as a result of defendant's misrepresentation.” Id.
New York (in addition to several other states) has also enacted additional statutory protections for the purchasers of companion animals. (See Section III, infra). New York law explicitly provides that the remedies included in the pertinent section of the consumer protection law do not limit or modify existing contract rights of the parties. See, General Business Law § 753. Thus, in a case where the buyers of an unhealthy dog were not able to avail themselves of the pet sale consumer protection laws under Article 35D due to their failure to meet the statutory requirements, they still had a cause of action under general contract theory. The court held that plaintiffs were entitled to recover damages pursuant to section UCC 2-714 under the theory that defendant breached the express warranty that the animal was healthy at the time of sale or under a theory of breach of the implied warranty of merchantability.
The above case underscores the court’s desire to broadly construe consumer protection laws. The UCC can often be the starting and ending basis for many contractual issues beyond implied warranty of merchantability.
One author has observed that products liability may provide yet an additional avenue for recovery in pet sales.
On occasion, courts have permitted a consumer who purchased a diseased puppy to obtain compensation under such law. In Worrell v. Sachs, the Superior Court of Connecticut decided that a pet fell within the definition of a product under the pertinent state law and that the plaintiff could therefore sue if it turned out that their animal was diseased or defective. In a similar vein, a New York Court reasoned that, "[t]here is no reason why ... a vendor who places a diseased animal in the stream of commerce should be less accountable for his actions than one who markets a defectively manufactured product. The risk presented to human well-being is as great and probably greater than that created by a defectively manufactured product." It is important to understand that while some courts have held that the purchaser of a defective animal is covered under the umbrella of product liability, other courts have held the exact opposite.
Adam J. Fumarola, With Best Friends Like Us Who Needs Enemies? The Phenomenon of the Puppy Mill, the Failure of Legal Regimes to Manage it, and the Positive Prospects of Animal Rights, 6 Buff. Envtl. L.J. 253, 278-279 (1999). [Footnotes omitted]
Thus, while Worrell did allow for recovery, most consumers would be wary to premise liability solely on such an action. (See, Worrell v. Sachs, 41 Conn.Supp. 179, 563 A.2d 1387 (Conn.Super., 1989). (But also see, Beyer v. Aquarium Supply Co., 94 Misc.2d 336, 337 (1977), concluding that purpose of products liability was to provide protection to consumer injured by defective products, and that such was also appropriate for pets). In the right situation and with the right court, a plaintiff may be able to pursue a products liability action for a "defective pet." Such a holding seems more likely where a diseased pet injures a human companion.
While courts interpreting the UCC have made many strides in terms of companion animal cases, the UCC itself provides little guidance to these types of cases. Many states, in attempt to fill that gap, have enacted codes that expressly govern the sale of pets by merchants. These laws provide both uniformity and a more equal bargaining position for both parties.
It should be noted that contract law and the UCC provisions provide the legal basis for the sales of all goods. In other words, any additional laws or regulations by the state or federal governments will not usurp any of the relevant state UCC provisions. However, in recognition that the sale of pets involves not mere inanimate goods, states have enacted codes to underscore the rights and responsibilities of buyers and sellers.
The aim of these statutes may serve another purpose; that is to limit the insidious presence of the “puppy mill.” By empowering consumers, the dealers are forced to improve their operations:
State animal dealer laws regulate not only day to day operations, but provide remedy to the consumer if it can be shown that the merchant sold a "defective" dog. Similarly, Courts have held that under certain circumstances, sale of a diseased puppy could be considered breach of express warranty either under a state uniform commercial code, or products liability law. The hope is that by holding the dealer responsible for the quality of their product and compensating the consumer where merchandise is "faulty," the distributor will be forced to pay greater attention to the health of the puppy. In turn, this heightened watchfulness can be expected to affect the choices made by distributors when purchasing puppies for resale, ultimately reducing the number of puppies purchased from puppy mills.
Adam J. Fumarola, With Best Friends Like This Who Needs Enemies? The Phenomenon of the Puppy Mill, the Failure of Legal Regimes to Manage it, and the Positive Prospects of Animal Rights, 6 Buff. Envtl. L.J. 253, 266-268 (1999).
Some states have gone so far as to articulate this noble purpose in their pet sale laws. Arkansas sets out this goal at the outset of its code.
It is the purpose of this chapter to require certain guarantees from retail pet stores to the purchasers of dogs and cats which are consistent with their unique status as companions rather than commodities. A further purpose is to provide a means by which it can be ensured that the treatment, care, and disposition of those animals is humane and that the treatment, care, and disposition are consistent with providing to the retail consumer animals which are physically and temperamentally sound, healthy, and fit as companions . . .
AR ST § 4-97-102. New York expresses a similar purpose in its section concerning pet sales:
It is hereby determined and declared that supervision by the state of the sale of dogs or cats by pet dealers is within the public interest and for the purpose of safeguarding the public and insuring the humane treatment of such animals by guaranteeing the good health of such dogs or cats in the course of such transactions, or providing other alternatives to the consumer.
Under traditional state police powers, state may enact laws that protect the health, safety, and welfare of its citizenry. These laws do not serve to usurp traditional remedies under contract laws or the UCC, but rather add an extra layer of protection to the public. Such is the case with the relatively new category of laws that protect consumers in retail pet sales. Virginia specifically notes this in its section:
The remedies provided for pursuant to this article are cumulative and not exclusive and shall be in addition to any other remedy provided for by law.
[emphasis added] VA ST § 3.1-796.83.
Currently, it appears that seventeen states have enacted laws aimed at providing specific rights and remedies to buyers of pets. The laws also appear to recognize the particular nature of the “goods” at issue; essentially, that these animals are sold to be companions to humans. As such, the laws expand the remedies available to buyers, allowing the buyer to keep the pet with whom he or she may have bonded and instead recover veterinary expenses. Note that these laws do not cover all animals that could serve as companions for humans. All seventeen states cover purchases of dogs and fourteen of those cover cats (New Hampshire even includes ferrets in its statute). See, List of State Statutes. The evident goal of most of these state laws appears to be the prevention of unnecessary litigation by mandating disclosure of an animal's health by sellers and placing a specific time limit during which buyers can return an “unfit” pet.
A. Disclosure Mandated
The most common aspect of these laws is that the rights and responsibilities of both the buyer and the seller must be disclosed to the buyer prior to sale. This can take the form of language on a written sales contract or a sign visibly posted at the store, or both. For example, in Maine, the law states that:
[a] pet dealer shall provide the purchaser a written notice of rights, signed by the pet dealer, certifying the accuracy of the information contained in the notice. The notice must be signed by the purchaser, acknowledging that the purchaser has reviewed and understood the written notice . . . In addition, all medical information required to be disclosed pursuant to this section must be orally disclosed to the purchaser by the dealer prior to purchase.
7 M.R.S.A. § 4160. Arizona disclosure law certifies that a veterinarian has examined the animal for sale:
(a) A statement signed by the pet dealer and the purchaser at the time of sale that contains all of the following:
(i) A statement that a veterinarian examined the animal and the animal has no apparent disease or illness.
(ii) A statement that a veterinarian examined the animal and at the time of the examination the animal had no apparent congenital or hereditary condition that would adversely affect the health of the animal at the time of sale or that is likely to adversely affect the health of the animal in the future.
The ostensible aim of these disclosure laws to ensure that each party, both merchant and buyer, understands his or her rights and responsibilities. A merchant who fails to provide the required documentation may also face civil penalties or license revocation by the state. At the same time, a buyer cannot unscrupulously bring back a dog who since acquired a disease or injury months after the purchase to seek a refund.
While disclosure laws serve a laudable goal in by attempting to place each party in an equal bargaining position, states also have recognized the need to prevent misrepresentation by sellers of pets. Indeed, these laws often carry the most bite in terms of consumer protection laws.
B. What Constitutes ‘Misrepresentation” under these Laws?
Under the various states laws that prohibit the sale of diseased pets, one element appears to be shared; that of scienter. This legal term, often termed a defendant’s "guilty knowledge," refers to the level of knowledge one has at the time of a crime or civil injustice. Essentially, it is the level of knowledge one carries with him or her when he or she misrepresents some material facts or offends a particular law.
With regard to animal sale laws, most states require that the act is committed “knowingly.” Thus, the pet dealer must have actual knowledge of a pet’s infection, disease, or other physical defect. Virginia law provides a clear example of the level of knowledge:
No person shall misrepresent the physical condition of any animal at the animal's sale, trade, delivery, or other method of transfer. For the purpose of this section, misrepresentation shall include selling, trading, delivering or otherwise transferring an animal to another person with the knowledge that the animal has an infection, communicable disease, parasitic infestation, abnormality or other physical defect that is not made known to the person receiving the animal. However, sale of an agricultural animal that has external or internal parasites that are not made known to the person receiving the animal shall not be a violation of this section unless the animal is clinically ill or debilitated due to such parasites at the time of sale, trade, delivery or transfer of the animal. Violation of this section shall be punishable as a Class 3 misdemeanor.
VA ST § 3.1-796.72. As seen from the Virginia law, misrepresentation can constitute a criminal act in addition to a contractual violation. A buyer is then entitled to rescind the contract or seek other damages under these laws. A state may also refuse to re-license pet shop owners who materially misrepresent facts in the sale of pets, are convicted of cruelty violations, or violate other provisions of the states’ pet shop acts. See, 225 ILCS 605/10. However, a buyer cannot sit back on his or her laurels and hope to receive compensation; he or she has a limited time frame during which he or she must act.
C. Time Frame Under Pet Sale Laws
One of the shared elements among the state laws is the existence of a finite time frame under which a buyer may return an animal or receive other compensation. The time frame varies from state to state and is dependent upon the condition for which the animal is being returned. In general, the time frame to return a sick or diseased animal is seven to fifteen days. In Vermont, for example, a buyer has but a week to receive a veterinarian’s opinion on his or her purchased companion animal.
(a) If, within seven days following the sale of an animal, a veterinarian of the consumer's choosing certifies the animal to be unfit for purchase due to illness or the presence of signs of contagious or infectious disease, or within one year the veterinarian certifies the existence of congenital malformation or hereditary disease, the consumer may act under subdivision (1) of this subsection, or if mutually agreed upon, under subdivision (2) or (3) of this subsection.
VT ST T.20 § 4302. Virginia and Arkansas expand this time frame to ten days from receipt of the animal. VA ST § 3.1-796.80. New York expands this time frame further to fourteen days from the date of purchase. NY Gen. Bus. Laws § 753.
Some states, however, recognize the need to allow for return of animals with genetic or congential conditions. Arizona allows purchasers to return a pet two months later in where a congenital condition is at issue:
A. A cat or dog that is purchased from a pet dealer is considered to be unfit for sale if either of the following applies:
1. Within fifteen days after the purchaser takes possession of the animal, a veterinarian who is licensed pursuant to title 32, chapter 21, [FN1] states in writing that in the veterinarian's opinion the cat or dog has become ill or otherwise symptomatic due to any illness, injury or other defect that existed in the animal before the purchaser took possession of the animal.
2. Within sixty days after the purchaser takes possession of the animal, a veterinarian who is licensed pursuant to title 32, chapter 21 states in writing that the animal has a congenital or hereditary condition that adversely affects the health of the animal or that requires or is likely to require hospitalization or nonelective surgical procedures.
Florida, Maine, Minnesota, and Vermont expand this time frame to one year. FL ST 828.29; ME ST T7 § 4155. Delaware's pet warranty goes even further by allowing purchasers two years to return a dog for congenital or hereditary conditions. DE ST TI 6 § 4001 - 4009. In all the statutes at issue, a purchaser must have a veterinarian certify that the pet suffers from either the disease or genetic condition within a specified time.
Failure to adhere to these time requirements may bar purchasers from recovering under state laws. In Sacco v. Tate, the court held that recovery under article 35-D of the New York General Business Law was not available where the plaintiffs did not produce the dog for examination by a licensed veterinarian designated by the dealer, nor did they furnish the dealer with a certification of unfitness of the dog within three days after the exam. 175 Misc.2d 901, 672 N.Y.S.2d 618 (1999), 1998 N.Y. Slip Op. 98231. It is interesting to note that the majority still affirmed the judgment in favor of plaintiff-buyers under UCC Article 2 principles, perhaps in part because both parties appeared pro se at trial. The dissent disagreed with this quasi, sua sponte application of contract law.
Despite a slight variance in the number of days, what remains consistent in all the laws examined is that a licensed veterinarian must certify the disease or malformation. A buyer must usually provide some expert certification within a specified time period that the animal is unhealthy in some respect. This serves at the basis to prove that the buyer received non-conforming goods.
D. What Is an “Unfit Animal” under These Laws?
Virginia law provides that a companion animal certified by a veterinarian to be unfit for sale “due to illness, a congenital defect deleterious to the health of the animal or the presence of symptoms of a contagious or infectious disease” allows a buyer to seek remedies. VA ST § 3.1-796.80. Arkansas law echoes Virginia law by describing a defective dog or cat following a sale as one who has “a congenital malformation which adversely affects the health of the animal, or the presence of symptoms of a contagious or infectious disease . . .” AR ST § 4-97-105. Notably, Arkansas recognizes that some infections are common among dogs and also that some buyers may attempt to subvert the law. As a result, the law contains the following limitations:
(e)(1) A veterinary finding of intestinal parasites shall not be grounds for declaring the animal unfit for sale unless the animal is clinically ill due to such condition.
(2) An animal may not be found unfit for sale on account of an injury sustained or illness contracted subsequent to the consumer's taking possession thereof.
AR ST § 4-97-105. California includes a knowledge component in its definition of an unfit animal:
(d) For purposes of this article, a disease, illness, or congenital or hereditary condition that adversely affects the health of the dog at the time of sale, or is likely to adversely affect the health of the dog in the future, shall be one that is apparent at the time of sale or that should have been known by the breeder from the history of veterinary treatment disclosed pursuant to this section.
California Health & Safety Code § 122050. In New Jersey, the sale of diseased or “defective” dogs is described in Title 56 of the state law. The specific Chapter 8, entitled, "Frauds, Etc., In Sales or Advertisements of Merchandise," contains provisions specific to animals, to wit:
"Unfit for purchase" means any disease, deformity, injury, physical condition, illness or defect which is congenital or hereditary and severely affects the health of the animal, or which was manifest, capable of diagnosis or likely contracted on or before the sale and delivery of the animal to the consumer.
NJ ST 56:8-92-97. In general, the laws limit recovery for animals who are certified by a veterinarian as diseased at the time of purchase except for the eight that allow for congenital defects. This reflects both issues fairness and legitimate proof at trial. While the limited recovery time surely disadvantages some buyers whose dogs may not exhibit symptoms of congenital diseases until months after purchase, it also encourages initial veterinary care. In fact, this requirement for most buyers to receive an initial veterinary assessment often serves as a basis for the court to assess damages.
E. Remedies Proscribed by State Law
The remedies available under these state codes essentially reflect those that would be awarded in a common law contracts action. The main difference is that these laws specifically reflect the unique status of companion animals as goods. All the states allow purchasers to either return the pet for a refund or exchange the animal for another one. Fourteen of the states allow purchasers to keep the pet and receive some reimbursement of veterinary expenses. This reflects the fact that a purchaser of an unfit dog may not necessarily want to return the pet and receive his or her purchase price if he or she has bonded with the animal. Vermont law seems to recognize this aspect of animal law and thus gives the consumer three options once a veterinarian certifies that a purchased animal is unfit:
(1) the right to return the animal and receive a full refund of the purchase price, including sales tax, and reasonable veterinary fees related to certification under this section. A veterinary finding of intestinal parasites is not grounds for declaring an animal unfit, nor is an injury or illness sustained subsequent to the consumer taking possession of an animal;
(2) the right to return the animal and receive an exchange animal of the consumer's choice of equivalent value, and reasonable veterinary costs related to certification under this subsection;
(3) the right to retain the animal and receive reimbursement from the pet dealer for reasonable veterinary service for the purpose of curing or attempting to cure the animal. In no case shall this service exceed the purchase price of the animal. Value of service is reasonable if it compares to similar service rendered by other veterinarians in the area, but in no case may it cover costs not directly related to the certification of unfitness.
VT ST T.20 § 4302. Likewise, Arizona law reflects this attempt to give consumers the choice to retain a “defective” dog:
C. If a cat or dog is unfit for sale pursuant to subsection A, the purchaser may elect one of the following remedies:
1. Return the animal to the pet dealer for a refund of the purchase price, including transaction privilege, sales or similar excise tax.
2. If a replacement animal is available, exchange the animal for an animal of the same species and of equivalent value and receive reimbursement for reasonable veterinary fees for diagnosis and treatment in an amount of not more than the original purchase price of the animal, including transaction privilege, sales or similar excise tax.
3. Retain the animal and receive reimbursement from the pet dealer for reasonable veterinary fees for diagnosis and treatment in an amount of not more than the original purchase price of the animal, including transaction privilege, sales or similar excise tax.
AZ § 44-1799.05. A purchaser in New York has the following election:
(a) The right to return the animal and receive a refund of the purchase price including sales tax and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section;
(b) The right to return the animal and to receive an exchange animal of the consumer's choice of equivalent value and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section; or
(c) The right to retain the animal and to receive reimbursement from a pet dealer for veterinary services from a licensed veterinarian of the consumer's choosing, for the purpose of curing or attempting to cure the animal. The reasonable value of reimbursable services rendered to cure or attempting to cure the animal shall not exceed the purchase price of the animal. The value of such services is reasonable if comparable to the value of similar services rendered by other licensed veterinarians in proximity to the treating veterinarian. Such reimbursement shall not include the costs of initial veterinary examination fees and diagnostic fees not directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section.
New York Gen. Bus. Laws § 753. California law is unique in that it allows consumers to recover above the purchase price:
(1) Return your dog and receive a refund of the purchase price, plus sales tax, and receive reimbursement for reasonable veterinarian fees up to the cost of the dog, plus sales tax.
(2) Return your dog and receive a dog of your choice of equivalent value, providing a replacement dog is available, and receive reimbursement for reasonable veterinarian fees up to the cost of the dog, plus sales tax.
(3) Keep the dog and receive reimbursement for reasonable veterinarian fees up to 150 percent of the original purchase price of the dog plus sales tax on the original purchase price of the dog.
California Health & Safety Code § 122100. Interestingly, in Arkansas, the consumer is not even given the option to the return the unfit pet.
(2) The reasonable value of reimbursable services rendered to cure or attempt to cure the animal shall not exceed the purchase price of the animal. The value of such services is reasonable if comparable to the value of similar services rendered by other licensed veterinarians in proximity to the treating veterinarian.
(3) The reimbursement shall not include the costs of initial veterinary examination fees and diagnostic fees not directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section.
AR ST § 4-97-105. Perhaps this law recognizes the incongruity in returning an animal that for all intents and purposes is defective and cannot again be sold.
Finally, Minnesota law provides some guidance in assessing proper damages for veterinary treatment:
Subd. 5. Responsibilities of purchaser. To obtain the remedies provided in subdivision 6, the purchaser shall with respect to an animal with a health problem:
(a) Notify the pet dealer, within two business days, of the diagnosis by a veterinarian of a health problem and provide the pet dealer with the name and telephone number of the veterinarian and a copy of the veterinarian's report on the animal.
(b) If the purchaser wishes to receive a full refund for the animal, return the animal no later than two business days after receipt of a written statement from a veterinarian indicating the animal is unfit due to a health problem.
* * *
The price of veterinary service shall be deemed reasonable if the service is appropriate for the diagnosis and treatment of the health problem and the price of the service is comparable to that of similar service rendered by other veterinarians in proximity to the treating veterinarian.
In all the state codes, a consumer cannot receive compensation if the dog or cat’s illness or disease resulted from maltreatment or neglect, if the purchaser fails to supply the appropriate documentation, or the illness or injury occurred subsequent to the purchase. (See AZ ST § 44-1799.05, AR ST § 4-97-105, and California Health & Safety Code § 122085 for example). It would be patently unfair to sellers to absorb costs resulting from buyers' own intentional or negligent conduct. However, recognizing that buyers are usually the disadvantaged party in such transactions, states impose strict penalties to sellers who knowingly sell or even attempt to sell diseased dogs.
F. Criminal and Civil Penalties
In addition to disclosure notices that allow consumers to rescind the sale of a pet within a specified period, many states also use civil or criminal penalties as a further deterrent to unscrupulous sellers. California law has a strict penalty that graduates for subsequent offenses:
Except as provided for in paragraph (6) of subdivision (a) of Section 122050, no breeder shall knowingly sell a dog that is diseased, ill or has a condition, any one of which that requires hospitalization or nonelective surgical procedures. In lieu of the civil penalties imposed pursuant to Section 122110, any breeder who violates this section shall be subject to a civil penalty of up to one thousand dollars ($1,000), or shall be prohibited from selling dogs for up to 30 days, or both. If there is a second offense, the breeder shall be subject to a civil penalty of up to two thousand five hundred dollars ($2,500), or a prohibition from selling dogs for up to 90 days, or both. For a third offense, the breeder shall be subject to a civil penalty of up to five thousand dollars ($5,000), or a prohibition from selling dogs for up to six months, or both. For a fourth and subsequent offense, the breeder shall be subject to a civil penalty of up to ten thousand dollars ($10,000) or a prohibition from selling dogs for up to one year, or both. For the purpose of this section, a violation that occurred over five years prior to the most recent violation shall not be considered.
An action for recovery of the civil penalty and for a court order enjoining the breeder from engaging in the business of selling dogs at retail for the period set forth in this section, may be prosecuted by the district attorney for the county in which the violation occurred, or the city attorney for the city in that the violation occurred, in the appropriate court.
Virginia considers the violation of § 3.1-796.78, 3.1-796.79, or 3.1- 796.82, all statutes dealing with the misrepresentation of an animal’s condition during the sale of said animal, a violation of the state’s Consumer Protection Act (VA ST § 59.1-200). In essence, the statute declares such a fraudulent practice unlawful akin the sale of a “lemon” car. Other states couch their pet sale laws in such consumer protection terms, as knowingly selling a diseased pet is considered inherently fraudulent.
G. Protection under State Consumer Protection Laws
It is significant to note that some states list their pet purchaser protection laws under their consumer protection codes rather than the general animal law sections. Under such laws, buyers and sellers have additional rights and responsibilities in certain commercial transactions. These laws are enacted to specifically protect consumers in transactions that are viewed as skewed in favor of sellers. In the case of companion animals, there may be another higher goal of indirectly regulating the pet industry. However, one author speculates that typical short frames to bring such actions fails to achieve either of these goals.
Like products liability and contract law, the goal of these statutes is to attack puppy mills by discouraging pet shops from acquiring sick or genetically-defective dogs from kennels. While the constitutionality of such laws has been attacked on a number of grounds, a federal district court has held that they are within the state police power and do not function to preempt the AWA. Therefore, for the time being, such laws are not in violation of the Commerce Clause. They are not, however, without problem. In order to receive remedies under these "lemon laws" most states direct the owner to return the puppy to the pet store within a specified time period. Pennsylvania requires the consumer to have both found the health problem and returned their puppy within ten days of purchase. Similarly, New York permits only fourteen days for the owner to return the "defective" dog. Some illnesses or diseases, however, do not show up until the puppy has reached maturity, which would most definitely be longer than two weeks or even a month. The statutory time limitation in these laws is too short to help a consumer with a puppy that has anything but an immediate ailment.
Adam J. Fumarola, With Best Friends Like Us Who Needs Enemies? The Phenomenon of the Puppy Mill, the Failure of Legal Regimes to Manage it, and the Positive Prospects of Animal Rights, 6 Buff. Envtl. L.J. 253, 281 (1999).
Such an exercise of state police power does not serve to undermine the protections of the UCC, but rather to add a further weapon in the arsenal against consumer fraud. This reasoning as applied to New Jersey's “puppy lemon law” was affirmed early by the Superior Court of New Jersey, Appellate Division. In 1977, the Court rejected a challenge by a retail pet establishment to the validity of the Attorney General's regulations governing the sale of pet cats and dogs adopted pursuant to the Consumer Fraud Act, N.J.S.A. 56:8--4. Pet Dealers Ass'n of New Jersey, Inc. v. Division of Consumer Affairs, Dept. of Law and Public Safety, State of N. J., 149 N.J.Super. 235, 373 A.2d 688, 22 UCC Rep.Serv. 16 (1977).
Pet Dealers contended that the regulations in question conflict with Article 2 of the Uniform Commercial Code (N.J.S.A. 12A:2--101 Et seq.) in that the regulations provided the consumer with broader remedies than are available under the Code. Thus, the laws were an invalid exercise of police power that attempted to usurp preexisting contract law. The court disagreed, finding that the UCC were intended to give stability and certainty to commercial transactions, not to limit otherwise valid exercise of police powers by the State. The court held the regulations are a valid act of police power, not an exercise of invidious discrimination the state's part. Id.
Pennsylvania, like New Jersey, enacted its dog purchaser protection law under the Unfair Trade Practices and Consumer Protection Law (UTPCPL). The UTPCPL, 73 P.S. § 201 et seq., was amended in 1997 to include the Dog Purchaser Protection provisions set forth at 73 P.S. § 201-9.3. The Dog provisions mandate that sellers supply certain information to buyers of dogs.
(a)(1) A seller shall provide a purchaser of a dog with a health record for a dog at the time of sale. In addition, the seller shall provide to the purchaser a health certificate issued by a veterinarian within twenty-one days prior to the date of sale for the dog or a guarantee of good health issued and signed by the seller. . .
73 P.S. § 201-9.3. This guarantee of good health is further outlined in the Act:
(ii) A guarantee of good health issued by the seller, and dated and signed by the seller and the purchaser on the date of the sale, warranting that the dog being sold is apparently free of and does not exhibit any signs of any contagious or infectious disease, is apparently free from and does not exhibit any signs of any defect which is congenital or hereditary; and does not exhibit any signs of being clinically ill or exhibit any signs of a parasitic infestation on the date of the sale.
The guarantee of good health shall clearly state in bold type:
THIS GUARANTEE DOES NOT WARRANT THAT THIS DOG HAS BEEN EXAMINED BY A VETERINARIAN. THE PURCHASER IS ENCOURAGED TO HAVE THIS DOG EXAMINED BY A VETERINARIAN AS SOON AFTER PURCHASE AS IS FEASIBLE.
The seller shall also verbally state these facts to the purchaser.
73 P.S. §§ 201-9.3. What is unique about the Pennsylvania law is that it provides two avenues under which a seller can be penalized. The first avenue concerns the buyer him or herself whereupon a buyer may elect from a set of remedies if the animal has a disease or congenital disorder. The act also contains a section that provides a civil penalty enforceable by the Office of the Attorney General:
(h)(1) The Office of Attorney General shall enforce the provisions of this section.
(2) In addition to any other penalty under this act, a civil penalty of up to one thousand dollars ($1,000) on any current licensee shall be levied against any person who violates any provision of this section or any person who conducts business under this section without proper license to do so. A penalty shall be levied for each violation.
(3) A purchaser shall file a complaint pursuant to this section by reporting it to the Bureau of Consumer Protection of the Office of Attorney General.
73 P.S. §§ 201-4 and 201-5. These proceedings initiated by the Attorney General may culminate in the imposition of civil penalties. 73 P.S. § 201-8. One Pennsylvania case determined that these the language of 73 P.S. § 203-9.3(h)(1) limits the enforcement of this "section" to the realm of the Attorney General's office. Cavallini v. Pet City and Supply, 848 A.2d 1002, (Pa.Super., 2004), appeal denied 857 A.2d 676. However, contrary to Pet City’s contention, a purchaser is permitted to pursue a private cause of action against under the Dog Purchaser Protection provisions of the Unfair Trade Practices and Consumer Protection Law (UTPCPL). The court found that the law as constructed only limited the exclusive enforcement of the Office of the Attorney General to the civil penalties outlined in Dog Purchaser provisions. Id.
A consumer protection law may be limited in its application to companion animals. In Virginia, a seller violates the state’s consumer protection act by misrepresenting a dog or cat’s registry with an animal pedigree association.
A. It shall be a violation of the Virginia Consumer Protection Act (§ 59.1- 196 et seq.) for a pet dealer to state, promise, or represent that a dog or cat is registered or capable of being registered with any animal pedigree registry organization if the pet dealer shall then fail to either effect such registration or provide the consumer with the documents necessary therefor within 120 days following the date of sale of such animal.
VA ST § 3.1-796.82. Many states have enacted laws relating specifically to the issue of pedigreed animals. Since pedigreed animals imply different obligations to sellers under the UCC (see Comment 14), states may also enact further consumer protection laws.
The sale of a registered or pedigreed dog does not in and of itself warrant any particular fitness of the dog. In other words, simply because the animal is a pedigreed breed, does not mean it does not suffer from health defects. South Carolina provides consumer protection for purchasers of “registered dogs.” Under this law, a pet shop proprietor must provide the consumer a “Election of Options” with the purchase of the dog. This document informs the purchaser of his or her rights under the contract to return the dog and potentially receive compensation for veterinary care within fourteen days from purchase. S.C. Code 1976 § 47-13-160, SC ST § 47-13-160.
Again, it should be important to note the distinction between a warranty of health by a pet dealer and the claim that an animal has a “registered” lineage. Any reputable dealer should have such a distinction visible on sales contracts or at his or her place of business. Lineage or registration of an animal does not in and of itself guarantee the animal’s health or overall fitness. In fact, the most famous breed registration organization, the American Kennel Club (AKC) clearly states on its website that the “. . . AKC does not breed or sell dogs, it cannot guarantee the quality or health of dogs in its registry. See http://www.akc.org/reg/about.cfm.
Pet dealers may have to comply with further statutory requirements for registered animals. In Virginia, for example:
The pet dealer's animal history certificate shall be signed by the pet dealer, his agent or employee, and shall contain the following information:
1. The animal's breed, sex, age, color, and birth date;
2. The name and address of the person from whom the pet dealer purchased the animal;
3. The breeder's name and address;
4. The name and registration number of the animal's sire and dam;
5. If the animal has been so examined, the date on which the animal has been examined by a licensed veterinarian, the name and address of such veterinarian, and a brief statement of any findings made; and
6. A statement of all vaccinations administered to the animal, including the identity and quantity of the vaccine, and the name and address of the person or licensed veterinarian administering or supervising the vaccinations.
The information contained in the pet dealer's animal history certificate required herein shall be informative only, and the pet dealer shall not be responsible in any manner for the accuracy of such information unless he knows or has reason to know that such information is erroneous.
A copy of the pet dealer's animal history certificate signed by the consumer shall be maintained by the pet dealer for a period of one year following the date of sale.
The factual situation in Cavallini v. Pet City and Supply, 848 A.2d 1002, 2004 PA Super 141, (discussed above under Consumer Protection Laws), dealt with the sale of an allegedly registered dog. Cavallini purchased a Yorkshire terrier puppy from Pet City that was represented to him a purebred. After several attempts to contact Pet City for the documentation to register the dog with the AKC, Cavallini filed a complaint with the Bureau of Consumer Protection of the Office of the Attorney General. While the issue on appeal ultimately concerned the propriety of a purchaser filing a civil cause of action under the statute, the court affirmed Cavallini’s damage award. The court held that the trial court did not err in permitting a private cause of action pursuant to the Dog Provisions of the UTPCPL.
A person purchasing a pedigreed animal is quite unlikely to visit the local animal shelter for his or her dog. In fact, he or she will usually work with a breeder or dealer who specializes in a certain breed. Thus, such transactions routinely come under the ambit of the UCC or applicable state laws. With the advent of technology, these pet purchasers now have the option to for the perfect pet from any location. This brave new world of pet sales is not without its dangers to purchasers, however.
One of the recent issues in pet sales is use of the Internet to purchase one’s pet. While this may be an efficient way to locate a specific breed or appearance of a dog, it does bring some concerns. Not only does the obvious issue of not being able to personally assess the dog arise, but there may also be an issue of jurisdiction. Further, certain states mandate specific veterinary procedures on animals sold at pet shops prior to their importation in the state. The health criteria a pet shop owner must meet in Michigan, for instance, exemplifies the danger of out-of-state pet acquisitions:
A person who operates a pet shop shall not do any of the following:
* * *
c) Sell or offer for sale a dog, unless the dog has been inoculated against distemper, hepatitis, and leptospirosis, para influenza and, if indicated, has been treated for external and internal parasites, not less than 7 days before the dog's entry into this state. The dog shall be accompanied by a health certificate signed by a veterinarian, including records of the dog's medication and immunization.
(d) Sell or offer for sale a cat, unless the cat has been inoculated against feline panleukopenia (cat distemper), rinotraecheitis and calici viruses and, if indicated, has been treated for external and internal parasites, not less than 7 days prior to the cat's entry into this state. The cat shall be accompanied by a health certificate signed by a veterinarian, including records of the cat's medication and immunization.
(e) Sell or deliver a dog or cat without providing to the purchaser a health certificate signed by a veterinarian licensed by this state, for the dog or cat. The certificate shall include a health record indicating the date and type of vaccinations which have been given to the dog or cat.
MI ST 287.333. If a person buys a pet over the Internet, these health safeguards are essentially circumvented and ultimately, the buyer pays the price. Further, the United States Humane Society suggests that sales of pets over the Internet are more likely to come from “puppy mills” or other unreputable sources. See, http://www.hsus.org/pets/pet_adoption_information/buying_a_puppy/.
Currently, the sale of companion animals to pet purchasers are also not covered under the Federal Animal Welfare Act, as the Act only pertains to dealers who sell dogs to retail sources and those dealers who sell dogs and cats to research institutions. Thus, the jurisdictional issue of which state, the buyer’s or seller’s, would apply (keeping in mind the monetary amount of $75,000 for federal diversity jurisdiction would not likely be met in pet sale situations). In May of 2005, Rick Santorum (R-PA) (co-sponsored by Richard Durbin (D-IL)) introduced legislation that would bring both large-scale retailers of dogs and individuals who sell dogs over the Internet under the ambit of the AWA. The legislation would also strengthen enforcement provisions under the Department of Agriculture. The American Kennel Club (AKC) who for so long opposed further federal regulation of dogs by hobby breeders, supports the bill because of the increase of Internet pet sales and foreign-bred puppies. See, http://www.akc.org/news/index.cfm?article_id=2514. The proposed legislation brings under the ambit of the AWA breeders who sell dogs for retail purposes, currently excluded under the AWA.
Unless such legislation is enacted, purchasers may face legal and logistic difficulties in pursuing claims against Internet breeders and retailers. A potential purchaser might be inclined to discuss the legal ramifications with a licensed attorney before expending the hundreds or even thousands of dollars on an Internet pedigreed pet.
Traditional contract law only slightly modifies the ancient advice of caveat emptor. Buyers of any goods must adequately evaluate them prior to contract for purchase. Implied warranties of merchantability serve to protect those consumers who purchase goods from those merchants who possess far more knowledge in the trade.
With regard to the sale of companion animals, the knowledge base of consumers is further impinged by a lack of veterinary training and emotional attachment. A consumer enters a pet shop often not seeking to identify the sturdiest of the lot, but a pet with whom he or she can bond. Recognizing this unequal bargaining position, states have enacted laws that supplement existing contract remedies under the UCC. These laws allow consumers a time period during which they may have a companion animal examined to guarantee its overall fitness. After all, most pet purchasers are not veterinarians and cannot be held to that level. The burden of disclosure rightly falls on the seller, who is in the position to know the animal’s health history.
As with all aspects of companion animal law, the focus lies on the owner or purchaser, rather than the animal itself. This is necessary under the current state of the law, as animals lack any independent legal identity. Despite this, consumers and practitioners alike should keep in mind the particular nature of the “good” in these transactions. As with most commercial transactions, the consumer can effectively change the industry through his or her actions:
The question asked by the court is not whether the animal has been hurt, but rather whether a defective good, in the form of a diseased animal, has been delivered, and whether such good poses a risk of injury. Animals may be delivered to states that do not impose products liability; animals may be sold without warranty; diseased animals may be cheerfully accepted as returned merchandise. Some pet stores may choose to absorb the costs imposed by products liability, contract or lemon law statutes is a function of the market. As long as there are consumers to purchase these products the pet store remains relatively unaffected by occasional imposition of legal liability. Indeed, the possible remedies--remuneration, vet bills and the hallmark of animal dealer acts, the replacement puppy--seem to only perpetuate the idea that the product is nothing but a commodity. The existing law is therefore unable to effectively manage this situation, thereby permitting the pet store profit from sales and ultimately perpetuate the existence of the industry.
Adam J. Fumarola, With Best Friends Like Us Who Needs Enemies? The Phenomenon of the Puppy Mill, the Failure of Legal Regimes to Manage it, and the Positive Prospects of Animal Rights, 6 Buff. Envtl. L.J. 253, 282 (1999). By divorcing the issue from the animal, society does a disservice to these creatures we often call members of the family. More states should be inclined to enact pet sales laws that reflect the needs of all parties; the seller, the buyer, and the animal companion at the center of the transaction. The purchase of a beloved animal companion goes well beyond the "ordinary course of business" to most consumers.
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