Anyone done this before? Selling a mare that is in foal, buyer buying the mare only and foal to be returned to seller upon weaning. How would you handle that contract? Buyer’s main concern is what if mare dies foaling or through something related to the pregnancy. How is that handled? Is there insurance for that sort of thing? And who pays for mare care until foaling and for foal to ship back? Mare is being sold at a discount already since buyer preferred mare to be open.
Sounds like lots of possibilities for things to go pear shaped. You are trusting a stranger to foal a mare and raise a foal to weaning age and then to send that foal back to you. I wouldn’t do it. If they want your mare that much, they can cope with the foal. They would be keeping it to weaning age anyway and weaning that foal. They can sell the foal and this whole legal quagmire can be avoided.
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I agree there is a lot of risk if either mare or foal gets hurt, or the buyer + mare disappear, or just general differing opinions as to the care. If I really wanted the foal I think I would just wait to sell the mare until after (yes I know there is risk there too if she gets hurt, or economy tanks and you can’t find a buyer, etc. but I’d rather take that risk)
Also consider - Not sure what breed registry (if any) the foal would be eligible for, or if you care, but you may want to look into who would be considered the “Breeder” per that registry. (I’m most familiar with the Jockey Club, which says the person who owns the mare at the time of foaling is considered the Breeder, and therefore eligible for any breeder incentives.)
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I would not do this. At all.
Unless you hire a magnificently qualified (and thus very expensive) attorney to draw up a contract and even then, the myriad of legal entanglements that might result would not be worth your time, money, or trouble.
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Call an insurance company…I believe you can get insurance. I certainly wouldn’t want someone else with my foal if I was seller…at most, I would be willing to sell an option to buy the mare after weaning. Mare would stay with me for foaling etc.
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As others have said, I would structure this deal differently.
Option 1: Sell the mare, board her for the owner until the foal is weaned, and the new owner can pay any costs to have her bred back to whoever they want to breed her to. The buyer can insure the mare at the same time as they purchase her. You would have to agree with the mare’s new owner what veterinary costs (related to foaling) you would be responsible for, and what the mare owner would be responsible for. For example, you could agree to pay for the mare’s routine foaling / post-foaling care, up to $X, but if the mare colicked or had another serious foaling complication, the new owner would be responsible (a good reason for the new owner to insure the mare).
Option 2: Take a deposit on the mare and sign a sales contract, with the stipulation that the sale will be finalized within a week after the mare has foaled, contract can be cancelled if there is a major foaling complication. Board the mare until the foal is weaned, new owner pays all costs related to getting the mare back in foal to the stallion of their choice. New owner can insure the mare if they want to.
There are extremely few people I would trust to foal out a mare and raise the foal until weaning for me. Way too many possibilities for things to go wrong. There are people that do deals like what is presented in the OP, but typically with lower cost mares bred live cover, where very little cash has been invested into the pregnancy, and the loss of the foal would not be considered a great loss either financially or emotionally.
From a buyer’s standpoint, it’s also a bad deal. Why? Because raising a foal until weaning can be a very time consuming and expensive and annoying thing to do. Mares and foals need special turnout accommodations. Foals need to be taught to wear halters and to lead and allow themselves to be handled and groomed. If something goes wrong, caring for a sick foal can be a round the clock commitment. Foals can also be a big PITA–not wanting to be caught and refusing to follow their mother either, being naughty or difficult to lead, being naughty for the farrier, etc. If I were looking to buy a special mare that was in foal to an undesirable stallion, I wouldn’t want to put myself through the bother of raising a foal to weaning.
If you do go through with selling this mare and expecting the foal to be shipped back, there is no “set” way to do it. The buyer would assume all risk of the mare (their horse) dying or suffering harm during foaling. But the rest would be totally negotiable–foal care, vet bills for the foal, transport for the foal back to you, etc.
Philosophically, I think that as a horse seller, sometimes you have to accept that a buyer might not be worth making a deal with if their stipulations become too complicated or unreasonable. Sometimes naive buyers have terms that they want to put in a deal that simply aren’t practical.
I think you should wait to sell the mare and give the prospective buyer first right of refusal when the foal is weaned, or sell mare and foal with the understanding you have the first right to buy it once it is weaned.
For you to sell the mare but retain ownership of the in utero foal seems just too problematic.
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BeeHoney made some excellent suggestions. I agree that I would not enter in this type of contract. Even if the buyer was a friend you can run into issues. If she wants the horse, then I would keep it until the foal is born and weaned, and then send the horse to her. You said you were already selling her at a discount as it was. She can’t do anything with the mare right now anyway, so it would make things easier for all parties. She wouldn’t have to deal with a foal, you would know that the mare was attended and taken care of at the foaling, and you would be able to raise your foal and to know that it received the appropriate care and handling. Good luck!
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