Received a MCOL for a kitten I sold **SETTLED**

[busylittle1]

In general. As I've not used this site before so I'm not sure where to post this.

A man came and chose a kitten that my cat had given birth too. I asked for a deposit as at 7 wks I thought it was 8 week old before I could sell them. Also I had been hand feeding them as mum stopped feeding the kittens at 5 wks old

He was happy with the kitten and happy to come back a week later.

a week later he came but the little kitty seemed depressed with all the other kittens going.so I said I would rather give him his deposit back as I wasn't fully happy for him to take it.

He picked the kitten up and put in into his basket. and left the rest of the money on the kitchen side.

I said nooo I don't wan you taking her she need more attention when feeding. I'm alone in the house with my toddler and he came to my nose and said, : We know what were doing, we've had kittens before I'm taking this kitten as It's a birthday surprise for his wife that day I'm not waiting another week.

I'll admit I was taken aback and didn't feel confident to challenge him with that aggression towards me.

 

In short.

 

6 weeks later he txt me saying the kitten died 2 days after buying the kitten and he has a £500 vet bill he wanst paying. he said the kitten went into the vets no later than 12hrs after buying it from me.. I just can't believe this. no one else has contacted me regarding the others.

I phoned him and said that I didn't want to taking the kitten in the first place.. with one to two word between us. he said it was his wife that is the most unhappy as it was distressing.

I offered the refund for the kitten but not the vets bill as I think he took total responsibility.

 

I heard nothing until 4 mths later I've just received a mcol from his wife. for £564. I received a copy of the vet bill

This lady wasn't here at the time to see what happened. if I don't respond to this claim I can receive a judgment against me and can SHE claim against me.

How am I sure this is the same kitten.

the kitten was fine thos was depressed looking. she was eating tho you had to tempt her to eat every 2 hrs. These kittens are my babies. I wouldn't want any harm to come to them.

I'm not a business seller. This was a private sale. No receipt given either as I haven't sold kittens before so didn't know what to do or not. no one asked for a receipt.as I would have eagerly given one.

I have 14 days to respond from 21 july.

[jackieandwayne]

The first thing you must do is put in a defence to that claim. I think its quite a simple thing to do on line without going into too much detail.

 

Hopefully others will come along this evening and advise you further, as this is not my speciality by any means.

 

Stay calm, don't panic, defend that claim on line so you know its been done, and then help will follow.

 

You could start gathering together any evidence that you have, did you have photo's of the kittens? Have you copies of any advertising that you did? Just to get things together to see what you DO have. Was anyone present with you at the time of this guy's first visit?

 

If this was me, and he tried to take an animal of mine I'd have taken the carving knife to him! However, I am me, and you are you!

[MandM]

Timeline is date of the summons, + 5 days for service, + 14 days to acknowledge giving a further 14 days to defend = 33 days from date on claim form.

 

Have you gone online and acknowledged the claim? Do this first and if defending then tick 'defend all'.

 

Mike

[steampowered]

A very unfortunate situation. I agree that you should be defending this claim, based on what you have posted it does not sound very strong. If you would like help putting together your Defence, please can you type out the exact 'Particulars of Claim' (without personal details) so we can see what they are claiming for?

[busylittle1]

Thank you so much. I really don't know how to handle this.

 

Particulars of Claim

 

My husband. XXXX purchased a kitten from Miss xxx on Wednesday 20th march 2013.He had viewed the kitten on the 13th march 2013 he paid £130 for it. I am VERY experience with kittens as I have raised litters myself previously My husband xxxx brought this as a surprise for me as out older cat had died aged 19. I arrived home on the 20th march to a lovely surprise but immediately said the kitten appeared very small. This was about 6pm. the kitten appeared restless and constantly cried all night wanting to sit on out feet. at about 3am after trying various things my husband took her to the vet emergency vet. although the vet tried everything over the period of 48hrs to get her well the kitten was put to sleep on the 22nd march. the vet bill came to 374.86. the vet said the kitten was too young to be taken from its mother and was unwell before we brought her/ home.

END

[honeybee13]

Hello there.

 

I'm sorry you're going through this, the people don't sound very nice. I can't comment on the legal side, but I have a thought that may or may not help.

 

I know a couple of people who breed cats and there are one or two that I know of at CAG. I understand that if there is a problem with a kitten, you would normally contact the breeder for advice. Or you could return the kitten.

 

My best, HB

[busylittle1]

I would have been more than happy for the kitten back but he didn't contact me at any time via email, txt or call until 6 weeks later. this dose not sound like my kitten. she was at no near deaths door. if she look ill I'm sure he wouldn't of taken her. She didn't look ill not hunched or laying down..just miserable. she was fine a normally happy bouncy girl.

[honeybee13]

I understand how you feel when you've raised a kitten as your own 'baby'.

 

I hope the legal experts will be along later.

 

HB

[Jimmy Jangle]

Well you've got reasonable grounds for defence AFAIK in that this 'gentleman' came back for the kitten and in spite of your advice, became aggressive and STILL took it despite your protest.

 

From what information I've gleaned online, most breeders never sell/give away kittens until they're at least 12 weeks old, as they still lack social & behaviour skills that the mother will teach.

 

Advise us of the following:

 

Have you had any issues at all with the other kittens from that litter that you've sold?

 

Can you type a copy of the advert you put out for the litter (if it was in a paper, online etc.)?

 

When you sold the kitten, did you advise the buyer of any requirements ie. vaccinations as kittens normally have a course of 2 injections; at 9 & 12 weeks?

 

Try and give as much info as you can recall; this sounds like something you can defend if you can prove that the kitten was in perfect health when you sold it (plus you can get a CPR request in asking for the vet invoice etc, to prove that they're not chancing their arm on a default CCJ).

Edited July 26, 2013 by Jimmy Jangle

[Jimmy Jangle]

Additionally, have a look at http://www.animalfriends.org.uk/social/pet-blogs/tips-on-buying-a-kitten-or-puppy/ in particular the following excerpt:

 

"If you buy a kitten from someone who is not a regular breeder, and it subsequently suffers from a disease or, worse, dies from a problem which can be traced back to the them, then you have no comeback under the 1979 [sale of Goods] Act.

 

However, the seller cannot actively misrepresent the fact that a kitten is fit and well if they know, or ought to have known, otherwise.

 

If you go to a breeder who is, knowingly or otherwise, acting in the course of business and your kitten experiences the problems mentioned above then, under section 14 of the 1979 Act, you could recover the cost of the kitten and/or any other losses you and the breeder could have reasonably expected (vets fees, travel costs etc)."

[DonkeyB]

I would suggest it’s also the wrong claimant. The PoC clearly states the husband bought the kitten.

[Jimmy Jangle]

Here's a draft idea, I don't condone its use, but am merely putting it on as a point of reference:

 

1. I, xxxxxx, am the defendant of the claim in this action and make the following statement as my defence to the claim made by xxxxxxx.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The sale was not made with the claimant name above, but xxxxxxxx, the claimant's husband, on the xx/xx/xxxx. As the claimant did not enter into any contract with the defendant, the claim is denied absolutely.

 

4. At the initial point of sale whereby a deposit was paid by the claimant's husband - this was because the animal was viewed as being too young to sell (the deposit was paid to secure the animal's future purchase as a pet for the claimant), the animal in question was in healthy condition and was viewed to be in accordance of the Sale of Goods Act 1979, specifically in regards to sections 13.1 and 14.2.

 

5. The claimant's husband returned to the defendant's property on xx/xx/xxxx to collect the animal and pay the rest of the balance owed, the defendant advised that the animal to be sold was seen to be unhappy; the defendant advised that she would rather the animal remained in her care until a later time.

 

6. When the defendant offered to refund the deposit already paid, the claimant's husband refused and became agressive towards the defendant, subsequently paid the remaining balance, and left the premises with the animal now in his possession. It is advised that at this time the animal was still in healthy condition, however was seen to be affected by its seperation from its litter and mother.

 

7. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Only a speculative one, so DON'T use this, just an idea as I previously said.

 

First things first though; have you acknowledged the claim online?

[seanamarts]

Did you contact the police with regards to him taking the kitten?

[steampowered]

See below for an example Defence. Feel free to amend as you see fit.

 

1. It is admitted that the Claimant's husband purchased a kitten from the Defendant on 20 March 2013. The contract of sale was between the Claimant's husband and the Defendant, and did not involve the Claimant.

2. It is admitted that the Claimant's husband viewed the kitten on 13 March 2013 and paid a deposit. At this time the Claimant's husband made a full inspection of the kitten. The Claimant's husband made another inspection of the kitten when he collected the kitten on 20 March 2013. Throughout the time the kitten was in the Defendant's control, the kitten was in good health. The Defendant did not make any representations or guarantees regarding the kitten's future health. The kitten was in full compliance with the contract of sale on 20 March 2013.

3. The Defendant has no knowledge of the events following sale of the kitten on the morning of 20 March and the Claimant is put to proof of the same.

4. It is denied that the kitten was too young to be taken from its mother. The kitten was eight weeks old on 20 March 2013. While there is always a risk involved when one is dealing with live animals, it is common for kittens to be removed from their mother at that age.

5. Alternatively, the Claimant's husband voluntarily assumed the risk of removing the kitten from its mother at eight weeks and/or is guilty of contributory negligence. When the Claimant's husband collected the kitten, he was clearly advised that [insert details of what he was told]. Notwithstanding this advice, the Claimant's husband insisted on taking the kitten home on 20 March, stating that the kitten was a birthday present for his wife and he was not going to wait another week. It would not have been a problem for the Defendant to keep the kitten with its mother for an additional period of time.

6. Alternatively, the Claimant's contributory negligence affected the outcome. The Claimant states that she is very experienced with kittens. If the kitten became distressed due to being removed from its mother, then the Claimant should have returned the kitten. The Defendant would have been happy to keep the kitten with its mother for a short additional period of time.

7. The Particulars of Claim does not state a clear cause of action. It is denied that the Defendant is liable to the Claimant, whether as set out in the Particulars of Claim or at all.

[busylittle1]

I've not acknowledged the claim yet. I don't know how to address this.

It's true to say the person making the claim against me is not the person who came for the kitten.

1, Can another person make a claim against you? She received a gift , as I see it. I honestly don't think this is my kitten they are referring to.

2, Can I ask for any proof.

[steampowered]

Acknowledge indicating intent to defend ... which will give you more time to defend.

 

Another person can make a claim against you, yes. The default rule is that contracts can only be enforced against the person who made them (i.e. between you and the husband). But where the intent is for the contract to benefit a third party (i.e. the wife), the third party can claim. Frankly this is not a road worth going down ... if you got the claim thrown out on this basis alone the husband would simply re-issue a new claim in his own name.

 

Yes you can ask for proof and judge will determine the issue on a balance of probabilities - see paragraph 3 of the draft Defence above.

 

If this was not even your kitten, then the claim would be fraudulent ... but honestly this sounds extremely unlikely and not something I would argue in the Defence. You can only make statements about things in your knowledge - do not be tempted to speculate about what happened after that because you simply don't know.

[busylittle1]

Do I write now what my defence is. or do I just click the option for the defend then later write it..

Sorry> I just want to get it right as I suppose I only get one chance.

[Jimmy Jangle]

Just acknowledge for now, it will then ask how you want to proceed - choose defend in full.

 

 

Do you know how to acknowledge through the site?

[citizenB]

Your timeline is as follows..

 

Date of issue of claim + 5 days for service = XX + 14 days to acknowledge = XX + 14 days to submit defence.

 

You need to acknowledge by the 2nd date and if you are going to defend in full, then click on the button to say this is what you intend to do and you will then have a further 14 days.

 

You have been given two draft defences which you can amend to suit - both of them look quite good to me.

 

You can ask for proof of their claim and any vetinary reports by using CPR part 18. If this is what you are going to do, then you need to act swiftly. If you let us know if this is what you want to do, then say and we can help you draft the CPR request.

[busylittle1]

HI all. just a quick update I have sent of my defence. stating when the buyer come on the day to collect the kitten. the kitten appeared well and the buyer watched her eat and drink. The buyer picked up the kitten and was still happy to take her. Tho I did offer a refund of the deposit because she looked a little miserable. He still insisted taking the kitten.. he was not willing to leave her for a few more days as I wanted. what I didn't mention was that he placed the kitten in his basket and left the remaining money on the side and quickly walked out. with out filling out a free months trail pet insurance . I had this link at the time and offered it to the other buyers. I just thought this was a good offer to give to someone buying a new kitten.

[Jimmy Jangle]

OK, could you put the defence on here so we can see it - obviously remove anything naming you or the claimant.

[busylittle1]

i'VE NOT ACTUALLY SENT IT YET AS NOW I'VE LOCKED MYSELF OUT OF THE GATEWAY THINGY. SO iIHAVE TO NOW EMAIL MY RESPONCE.

 

This is my defence.

 

I Miss XXXXX am the defendant of the claim in this action and make the following statement as my defence to the claim made by Mrs XXXXX

 

Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

 

The sale was not made with the claimant name above, but with the claimant's husband, Mr XXXXX As the claimant or her husband did not enter into any verbal contract with myself, the claim is denied absolutely.

 

At the initial point of sale whereby a deposit was paid by the claimant's husband (dates are unconfirmed.)

This was because the kitten was kept for another week as Mr XXXXwas going on holiday as I remember.

The kitten was 8 weeks old then.

Mr XXXX viewed the kitten and watched it with its siblings and mentioned that the kitten in question was in fact some what smaller than it's siblings. I did mention that mum cat had stopped feeding them at 5 wks of age and I had to take over the feeding. Mr XXXX was happy and watched the litter play with one another and saw the kitten he was interested in, feeding and drinking. Mr XXXX stayed approximately 1 hr. I mentioned that 1 months free pet insurance would have to be registered before taking the kitten when he collects the kitten. He agreed this and said when he collects he would do this. (the deposit was paid to secure the animal as a pet for the claimant).

The animal in question was in healthy condition and was viewed to be in accordance of the Sale of Goods Act 1979, specifically in regards to sections 13.1 and 14.2.

 

The claimant phoned me in the morning to confirm collection. I told Mr XXXX that the kittens seemed unhappy as she is now alone with out the others. Mr XXXX replied saying " aww she will be ok" The claimant's husband then came to my home ,NOT with the claimant to collect the animal and pay the rest of the balance owed .

I again advised that the animal to be sold was seen to be unhappy. I advised that I would rather the animal remained in my care for another few days. Notwithstanding this advice, the Claimant's husband insisted on taking the kitten home.

The kitten became unhappy when the rest of her siblings had found homes. It is denied that the kitten was too young to be taken from its mother. The kitten then was 9 weeks old. As I got homes for the other kittens at 8 weeks old. It is common for kittens to be removed from their mother at that age as a private sale.

 

When I offered to refund the deposit already paid, the claimant's husband refused and became aggressive towards me telling me "I'm not waiting any longer, she only look miserable, this kitten is for a surprise for my wife, we've had kittens before we know what we are doing." I was a bit taken aback as I was on my own with my 3 yr old. I was not willing to challenge him as he seemed certain to take it. It had to be this one because is was pure grey. Mr XXXXX watched her go to her food bowl and eat then walk back to her bed. Mr XXXX picked up the kitten and stroked her. I said again, " No I'd rather you come back in a few days or I will give you your deposit back . Again he said "NO" Subsequently Mr XXXX left the remaining balance on the kitchen side and placed the kitten in his basket as he walked out and left the premises with the animal now in his possession.

It is advised that at this time the animal was still in healthy condition, however was seen to be affected by its separation from its litter . Mr XXXXX did not fill out the free pet insurance as offered.

The Particulars of Claim does not state a clear cause of action. It is denied that the Defendant is liable to the Claimant, whether as set out in the Particulars of Claim or at all. Mr or Mrs XXXXX had not made any contact that night stressing any concerns as one would have expected to do so as with their experience I would have expected . Mr XXXXtook responsibility when walking away with the kitten and going against my wishes.

[busylittle1]

I've JUST COME ACROSS THIS

the sales of goods act refers to breeders.

I just had 1 litter from my cat. which now is neutered.

 

 

Buyer Beware!

By Chris Fairfax, Legal Director of independent UK Pet Insurance providers, Animal Friends Insurance.

 

If you buy a fridge or a car for example, from a shop or a dealer, you have certain rights. One set of rights are those set out in any written contract you receive. But there s another set under the Sale of Goods Act 1979. The two major rights are that the goods you buy must be of satisfactory quality and they must be fit for the purpose . (Section 14). They are rights that a dealer cannot contract out of so remember that next time a dealer tries to tell you a fault falls outside a contractual warranty! Since cats are regarded by the law as property, they fall within the Sale of Goods legislation too.

 

This only protects a buyer who has bought goods from someone who was acting in the course of business . It does not apply where you buy a car from a private individual or a kitten from Auntie Maud. In those cases the good old caveat emptor rule applies ( let the buyer beware ). But where you buy a kitten from someone who the law says is acting in the course of business", ie a breeder, the 1979 Act comes into play.

I am sure there are many instances though where someone breeds and sells kittens or puppies but does not for a minute think they are acting in the course of business. And yet if a dispute over a pet sale went to court, the law would decide the issue. A judge would look at all the circumstances, including the frequency of sales, what advertising was undertaken, whether accounts were kept, how much was made, how much was spent and so on. He may then decide that the breeder was acting in the course of business , giving the buyer Sale of Goods Act remedies and probably giving the breeder an uncomfortable time with the Inland Revenue too!

 

If you buy a kittenfrom someone who is not a regular breeder, and it subsequently suffers from a disease or, worse, dies from a problem which can be traced back to the them, then you have no comeback under the 1979 Act. However, the seller cannot actively misrepresent the fact that a kitten is fit and well if they know, or ought to have known, otherwise. If you go to a breeder who is, knowingly or otherwise, acting in the course of business and your kitten experiences the problems mentioned above then, under section 14 of the 1979 Act, you could recover the cost of the kitten and/or any other losses you and the breeder could have reasonably expected (vets fees, travel costs etc). If the kitten had been bought for showing or breeding, then other losses may come into play, but only if it could be said the breeder knew (or ought to have known) this purpose at the time of sale.

For peace of mind it would be wise to set up a private written contract between yourself and the breeder. A contract can be verbal, but the problem with this is proof. If a dispute occurs it becomes a "who said what to whom" argument which could be a complete nightmare! A written contract would describe the kitten, the price agreed and any special conditions agreed between the parties. The contract could also include warranties (for example pedigree lineage, freedom from hereditary defect or major illnesses).

[Jimmy Jangle]

It's OK, but could do with being a bit more to the point.

 

Also I wouldn't rely on quoting too much as you have no physical evidence (ie. recordings, verified transcriptions) of your conversation.

 

I personally recommend you copy steampowered's defence and make only the required amendments; don't bog the defence down with what may be considered irrelevant ie. the pet insurance for one.

 

Also, seperate each numbered paragraph from the other so it is easy to digest by all parties.

 

As long as the defence states the facts in a clear concise manner you're all set.

[Jimmy Jangle]

I've JUST COME ACROSS THIS

the sales of goods act refers to breeders.

I just had 1 litter from my cat. which now is neutered.

 

 

Buyer Beware!

By Chris Fairfax, Legal Director of independent UK Pet Insurance providers, Animal Friends Insurance.

 

If you buy a fridge or a car for example, from a shop or a dealer, you have certain rights. One set of rights are those set out in any written contract you receive. But there s another set under the Sale of Goods Act 1979. The two major rights are that the goods you buy must be of satisfactory quality and they must be fit for the purpose . (Section 14). They are rights that a dealer cannot contract out of so remember that next time a dealer tries to tell you a fault falls outside a contractual warranty! Since cats are regarded by the law as property, they fall within the Sale of Goods legislation too.

 

This only protects a buyer who has bought goods from someone who was acting in the course of business . It does not apply where you buy a car from a private individual or a kitten from Auntie Maud. In those cases the good old caveat emptor rule applies ( let the buyer beware ). But where you buy a kitten from someone who the law says is acting in the course of business", ie a breeder, the 1979 Act comes into play.

I am sure there are many instances though where someone breeds and sells kittens or puppies but does not for a minute think they are acting in the course of business. And yet if a dispute over a pet sale went to court, the law would decide the issue. A judge would look at all the circumstances, including the frequency of sales, what advertising was undertaken, whether accounts were kept, how much was made, how much was spent and so on. He may then decide that the breeder was acting in the course of business , giving the buyer Sale of Goods Act remedies and probably giving the breeder an uncomfortable time with the Inland Revenue too!

 

If you buy a kittenfrom someone who is not a regular breeder, and it subsequently suffers from a disease or, worse, dies from a problem which can be traced back to the them, then you have no comeback under the 1979 Act. However, the seller cannot actively misrepresent the fact that a kitten is fit and well if they know, or ought to have known, otherwise. If you go to a breeder who is, knowingly or otherwise, acting in the course of business and your kitten experiences the problems mentioned above then, under section 14 of the 1979 Act, you could recover the cost of the kitten and/or any other losses you and the breeder could have reasonably expected (vets fees, travel costs etc). If the kitten had been bought for showing or breeding, then other losses may come into play, but only if it could be said the breeder knew (or ought to have known) this purpose at the time of sale.

For peace of mind it would be wise to set up a private written contract between yourself and the breeder. A contract can be verbal, but the problem with this is proof. If a dispute occurs it becomes a "who said what to whom" argument which could be a complete nightmare! A written contract would describe the kitten, the price agreed and any special conditions agreed between the parties. The contract could also include warranties (for example pedigree lineage, freedom from hereditary defect or major illnesses).

 

This is what I advised earlier on as a point of reference.

 

As the kitten was sold as seen and the buyer is happy, and you haven't misrepresented in any way, then the claim has no grounds.

 

Use the defence from steampowered as advised, it should see you right.