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Irena

Taking a breeder to small claims court

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Anyone know of any successful (or not) examples if taking a breeder to small claims? Any pitfalls to look out for? I'm considering action.

 

Also, is there a threshold at which they'd be considered a business (as opposed to a private seller), i.e a number of litters or something?

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The courts can only put you back into the position you were in before you made your purchase so a refund on the price of the dog and probably any initial vet consultation fee.

 

you wont be getting any further expenses for what might happen in the future.

 

Decide which is important to you but be realistic if you cannot reach some agreement with the seller.


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Thanks @dx100uk

 

In this case, the disease was diagnosed within 6 months of purchase and it's my understanding that the seller would need to prove that it was not pre-existing according to CRA 2015 (the probability of it not coming from the seller's house is very small).

 

Citizen's Advice said that I could argue for a "discount" on the purchase price on the basis of quality and that a replacement/repair would be a major inconvenience.

 

Any thoughts on that would be welcome!

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you will have a very difficult task in proving the diagnosed disease was/is systemic and resulted from the breeder and that they knew the animal had it at the time sale .

 

might be best come to some mutual agreement.?

 


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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I hope nobody will mind if I make a slight correction here.

Actions in contract or in negligence are all about a breach of duty. Their purpose is effectively to repair the breach and return the parties to a position that they would have been if the breach had not occurred.

This means that in negligence, the courts purpose will be to try to return the injured party to the position they would have been in had the accident – or other negligent acts not occurred. This will generally put them in their pre-accident position.

In contract the courts purpose will be to put the injured/innocent party into the position they would have been at the contract been executed successfully – in other words there post-contract position. Contractual damages would normally intend to compensate you for your expectation loss.

 

I think it will be helpful if @Irena would tell us what has actually happened rather than impose the very generalised question which is difficult for anybody to answer


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Well, I wanted to do it in a way that a person in question wouldn't find this, but I guess that will be difficult.

 

A few weeks after homing, the pet I'm talking about was diagnosed with Feline Infectious Peritonitis. about 80% of cats have coronavirus (in this particular case the likelihood that the kitten wasn't already infected when homed is very unlikely, and imo the seller would need to produce test results on their cats to prove otherwise), but in about 5-10% it mutates into the actual disease.

 

Not a lot is known about why the mutation occurs, but there's usually a stressful event, faulty immune system, in some cases a genetic predisposition. Up till very recently, it was a death sentence, but I got a hold of some experimental meds and the cat is doing fine for now (those meds are not covered by insurance, but well, things we do for family).

 

Regarding the seller, long story short is that he blocked me.

They have more litters a year than what I'd be normally comfortable with but he came highly recommended, registered etc.

 

my argument is that I paid above average price for this kitten.

If I bought a Rolex, I wouldn't expect it to break after a few weeks, just as I wasn't expecting 90+ vet visits in the first 5 months of ownership, and IMO it's not what that "reasonable" person (per CRA) would expect either.

 

It's my understanding that as the "fault" appeared within 6 months of purchase, it would be presumed to be pre-existing at the time of purchase unless the seller is able to prove otherwise.

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now we have the full story, IMHO he would need to produce evidence that he has taken all necessary steps to ensure , throughout his stock, that Feline Infectious Peritonitis is not present. this should be by way of numerous test result reports.

 

if he cant , then the prospects of your success, inc what you have to date spent out, and future costs, look very good.


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Thanks @dx100uk

 

Could someone argue that (and I'm going to use an actual good because it's easier to imagine) say I bought a new boiler and it broke down over Christmas. I then contact the seller saying "the boiler is broken, I'm getting it fixed because it's cold and I need it fixed asap" and use my insurance, and then ask the seller for a discount (which is, admittedly, lower than the cost of fixing the item). 

 

Could they argue that I should've given them a chance at repair, it was my choice that I fixed it at my own expense, and as such I don't have any further rights? 

 

Obviously it was different with a living animal that would be gone within (literally) a couple of days if I didn't start treatment, so I'll never regret going down that route.

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there is always a greater risk of limited or any success if you go forward and do something yourself and then try and claim that back latterly in court.

yes one should always approach the retailer 1st.

 

however in this instance it is a living being and one would expect and indeed even be legally bound? (with respect to potential prosecution against you), to carry that out a vets recommendations ASAP to limit any suffering.


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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If the breeder is registered, have you read the GCCF guidance on FIP for breeders? It could help your case. I can't post a link because it's a pdf document but a google search will find it.

 

HB


Illegitimi non carborundum

 

 

 

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3 hours ago, Irena said:

Could someone argue that (and I'm going to use an actual good because it's easier to imagine) say I bought a new boiler and it broke down over Christmas. I then contact the seller saying "the boiler is broken, I'm getting it fixed because it's cold and I need it fixed asap" and use my insurance, and then ask the seller for a discount (which is, admittedly, lower than the cost of fixing the item). 

 

This is where the problem lies in the law which regards animals as 'property' and when buyers refer to the Sale of Goods Act for remedy.  No decent owner wouldn't attempt a speedy 'repair' i.e. veterinary treatment when needed, in fact not doing so carries the risk of prosecution.  Question is, have you lost the chance to reject the goods if you do so and can you hold the seller responsible for the cost of the repair?  A true emergency repair probably isn't what most owners would want though there is a fair point that costs should be kept to a minimum if it's undertaken.

 

Exactly how long after purchase was the disease diagnosed?  If the kitten was apparently healthy for a reasonable period after purchase then there's no way the breeder could have known.  FCoV has next to no symptoms (if any) and you have correctly identified the stressors which can cause seroconversion. Did the kitten come with a period of free insurance and did you keep this up?  If you did what exactly are you claiming from the breeder?  The excess maybe?  If more, what and why?

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@honeybee13 - yes, I read that and the seller follows a couple of those recommendations, but not all. The file feels a bit outdated too because it's talking about SGA instead of CRA, and there are a few things around liability that don't sound right to me.

 

@dx100uk 

Well, even in those circumstances, I guess I could still just go back to basics and argue quality (I'd expect better quality of item X considering the money I paid)? Without necessarily claiming for vet costs.  

 

@hightail Diagnosed about 8-10 weeks after purchase (I'd need to count exactly). Didn't come with insurance, but I bought it. Ideally I'd want to claim for at least a discount in purchase price + excess, as repair/replacement would be a major inconvenience (that was the advice from Citizen's Advice).

 

Re: the fact that they couldn't have known, I think that by that logic any trader could get away with selling any faulty goods because "how could they know that this fridge was going to break a few weeks after purchase?" 

 

 

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When you buy a fridge you are happy to reject the goods if they're 'faulty'.  There isn't any emotional involvement, I've never known anyone bond with a fridge.  You reject it, send it back and get your money back.

 

2 hours ago, Irena said:

Diagnosed about 8-10 weeks after purchase

 

This is quite a long time.  I've known of kittens seroconverting because of the stress of rehoming but it tends to happen quite quickly.  In those cases the new owner is absolutely entitled to reject the kitten and a refund of the purchase price.  You don't get to keep the goods and get your money back though.

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Is this cat a registered pedigree?  How old was it when you picked it up?  Something isn't right here.

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Yes, registered with GCCF. They were recommended by so many people, I probably ignored some of the red flags, including the insurance piece. Hindsight is a great thing.

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And I feel for you but I wouldn't do you any favours if I didn't point out all the complications.

If GCCF registered then this kitten was at least 13 weeks old when you got it and had a complete record of two vaccinations yes?  It's another point that this means it was vet checked - twice, vets do a complete health check including weight when you take kittens in for vaccs at 9 and 12 weeks.  This means the breeder has 'expert opinion' as to the health of the kittens just prior to sale.  Difficult to point to negligence with this background.

 

I'm not saying you're wrong, just pointing out what you'd be up against.

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And this is exactly what I wanted! I want to make sure that if I do take action (and I'm still not sure), what I'm saying actually makes sense.

 

The kitten was 12 weeks but that's something that GCCF will hear about in a separate complaint, just need to get the paperwork together and send it off. 

 

Re: "You don't get to keep the goods and get your money back though",  it looks like it is a second tier remedy (Keep the goods and get a reduction in price), for example looking at the flow chart on p. 31 here: https://www.businesscompanion.info/sites/default/files/CRA-Goods-Guidance-for-Business-Sep-2015.pdf 

So I think I could argue that 1st tier remedies at this point would be a major inconvenience and go to 2nd tier remedies instead.

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Of course you can argue it but that doesn’t mean you’d win.  If the breeder is refusing to speak to you you would probably win by default as they’ll not bother replying to a court claim. Then you’d have to take action to recover whatever you were awarded because a breeder like that isn’t going to pay up.  The chances of you ever getting paid anything are slight.
 
I honestly think a better course of action is putting a formal complaint in to the GCCF first.  It would cost very little and if upheld you could use it in any future proceedings.

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Sale too young is not a problem, but I think that for sale of a sick kitten they might want a post-mortem (?) which hopefully I won't be able to do. The kitten is doing well so far on the experimental (although unlicensed) meds 🤞

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From what you’ve said so far you weren’t sold a sick kitten.  You were sold a kitten which ‘probably’ carried FCOV - as do an estimated 80% of the feline population.  They’re not considered sick unless and until they convert to FIP.

 

What are are the dates on the kitten’s vaccination record?  You say selling under 13 weeks isn’t a problem but there must be a clear 7 days from second vac before a kitten can leave the breeder.

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Sorry, I meant that filing a complaint for sale too young isn't a problem. The kitten was actually sold on the day of the second vaccination.

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Pretty sure your complaint will be upheld then.  It used to only be a recommendation that kitten’s were kept fora week after second vac but it’s been a rule for a fair few years.

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Still (and someone please correct me if my reasoning is wrong) under CRA if I buy said "fridge", it works fine for 10 weeks (is healthy) and then stops working (gets sick), the fault would be presumed to be preexisting and the seller would have to prove otherwise

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You can use the fridge argument which is perfectly correct.  What I said at the start is that the same argument is simplistic where a living being is involved.  Where will your presumption get you if the breeder can show clear titre tests for their cats?  I’m not saying they would/could but they might.  You can’t know.

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Well, to be honest, if they're able to show clear titre tests, I'll hold my hands up and be glad that (hopefully) no one else will have to go through the same nightmare as I did

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