By Linda C. Garrett, Esq. and Mary Ann Hall, Esq.

You’ve spent months, perhaps years, planning the perfect breeding. For about two months you have carefully watched your bitch - first for signs of pregnancy and then for the tell-tale signs that labor and delivery are imminent. Finally, for eight weeks you have nurtured those little grey bundles of joy. Now you have found the ideal home for “Puppy.” The new owners seem like the perfect match. Surely, they are just as interested as you are you in the well-being of the new addition to their family and there is no need to memorialize all that has been discussed. Right?

While a contract (which is an agreement between two or more people either to do or not to do a particular thing) can be oral, it is far better to have a carefully constructed written document that will spell out exactly what is expected of both the seller and the buyer. A well-written contract can stave off conflict, if not disasters (“Gee, I thought it was OK to neuter Rover!”). While this article is not intended to replace the legal advice of a lawyer in your geographical location and is not an exhaustive review of contractual issues, here are a few helpful tips to consider as you are putting together your puppy buyer contract.

1. PUT IT IN WRITING. As already stated, oral contracts are legally enforceable. However, if it comes down to proving the terms of the contract, verbal contracts are inherently problematic. Remember, a contract is an obligation that arises from the agreement of the parties. If there is a dispute as to what the parties agreed upon, you don’t want a judge or a jury deciding for you. Construct a checklist of all of the important provisions that should be in the contract, such as identifying the parties to the agreement (e.g., name, address and other contact information of Seller and Buyer(s)), a detailed description of the dog/bitch, the purchase price of Puppy and time/method of payment, definitions of certain terms, the obligations of Seller and Buyer(s) and warranties/guarantees, just to name a few. Make sure, as well, that there is a provision stipulating that the written agreement can be amended or modified only by another written agreement executed by all of the parties.

2. MAKE SURE THE CONTRACT IS SIGNED BY ALL OWNERS. If Puppy will have multiple owners, make sure that everyone involved signs the agreement. As a general rule, a contract cannot be enforced against a person who is not a party to the agreement. Put a provision in the contract which refers to the AKC Registration certificate and expressly incorporates it into the agreement. Remember, the contract by itself does not determine ownership of Puppy. Include in the provision a stipulation that in the event an individual who signs the contract as a buyer is not subsequently listed as an owner on the AKC Registration certificate, that individual does not have the right to enforce the contract. The contract, in addition to the AKC Registration certificate, should determine the ownership of Puppy and the right to enforce the puppy buyer contract. Put an original of the fully executed contract in a safe place.

3. MAKE SURE THE CONTRACT IS EASILY UNDERSTOOD. The terms of the agreement should clearly and precisely convey the intent of the parties. If the contract is vague or if there is any ambiguity in the agreement, it will be construed against the drafter (which is usually Seller). Clearly define terms such as “pet quality” or “show quality”; a novice owner may have a different view as to what the terms mean. Address contingencies and set forth the responsibilities of the parties (e.g., a puppy sold as “show/breeding quality” is subsequently diagnosed with a genetically derived medical disorder). Be as specific as possible regarding the obligations of Buyer. For example, if Puppy is to be certified clear of hip dysplasia, is Buyer required to obtain OFA certification, PennHIP certification or both? At what age must Puppy be x-rayed?

4. MAKE SURE THE CONTRACT IS ENFORCEABLE. Courts will not enforce a contract (or a particular provision in a contract) that is illegal or against public policy. For example, if there is a provision in the contract that prohibits Buyer from administering a certain vaccine and there is a local health ordinance in the area in which Buyer resides requiring the vaccination, this provision will be unenforceable. Likewise, a court may refuse to enforce an unconscionable contract or provision. Carefully consider the requirements imposed on Buyer and whether they are easily enforceable. For example, instead of requiring Buyer to attend obedience classes, offer a “rebate” on Puppy’s purchase price once Buyer provides a copy of Puppy’s graduation certificate. And, finally, make sure all of the parties have the legal capacity to enter into a contract. In most jurisdictions, a minor does not have the legal capacity to enter into a contract of this nature.

5. MISCELLANOUS PROVISIONS. While you certainly hope that Puppy will live a long and pampered life with his/her new family, it is prudent to address the manner in which a dispute and/or life’s uncertainties will be handled. For example, consider a provision requiring Buyer to give Seller the first option to repurchase Puppy if Buyer becomes unable or unwilling to keep or care for him/her (a buyback option). Decide the repurchase price in advance and state the amount in the contract. In the event that it should become necessary to enforce the contract through the court system, decide in advance which State will have jurisdiction: “ This Agreement shall be construed, interpreted, and enforced in accordance with the laws of the State of ________________.” You may want to include an arbitration clause which mandates arbitration prior to filing litigation. Arbitration is an alternative method for resolving disputes and is used before litigation is filed. It is a structured system under a national organization of professions arbitrators and is recognized within the judicial system. Check within your jurisdiction to see whether the first page of the contract must be clearly marked as an agreement that is subject to arbitration. Finally, as litigation can be costly, include a provision which would allow the prevailing party to recover court costs and reasonable attorney’ fees.

6. TRANSFER OF OWNERSHIP. As previously stated, include a provision which gives Seller a buyback option. If desired, clearly prohibit the transfer of ownership without the express, written consent of Seller. The term “transfer” can be defined to include selling, trading, leasing, and euthanizing Puppy. Make sure that once ownership of Puppy is transferred, Buyer is no longer a party to the puppy buyer contract and cannot enforce the agreement.

7. LIABILITY OF CO-OWNERS. This is a legal dilemma similar to that posed by auto liability. If you are struck by Driver A, who is driving a car owned by Driver B, you would sue both drivers. Under law, the person having direct control over the dog would be liable, but so would all co-owners. A “hold harmless” clause will protect you from liability if the dog causes an injury. Better yet, have the co-owner maintain liability insurance listing you as an additional insured on their homeowner’s policy.

Again, this is a very brief overview of some issues to keep in mind while you are drafting your contracts. Always consult an attorney to ensure compliance with your local and state laws.