But that’s the thing. You SOLD… TRANSFERRED OWNERSHIP… of the horse. It’s not yours anymore. You have NO RIGHT to something you no longer own.
That’s why first right of refusal is unenforceable.
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That’s where the ambiguity comes in, I guess.
As the original buyer of the horse, person paid for horse, and now owns horse. So, not stolen property. Now, with a First-Right-of-Refusal Clause being present in the contract, could one argue that breach of clause means breach of contract? Sure. I doubt they’d get anywhere with that argument though. Horse is paid for, ownership transferred, end of discussion. That’s why having a penalty in the contract makes the clause somewhat enforceable.
I missed it in the first post, the part about amount stated.
I would think no, for the reason others mentioned. Plus, that’s rude as heck. You have no way of knowing what a horse’s worth will be in six months, let alone a couple years. Having a set dollar amount in the FROR clause would absolutely prevent me from purchasing a horse. It should be “at market value” or something of the like.
I don’t understand why some sellers expect buyers to provide a lifetime home when they themselves are selling a horse.
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That and why time and money spent on suing the buyer is a better option than leasing the horse out.
OP, why sell the horse at all if you want it back if/when the buyer wants to sell? Why not just lease it? I do not understand why this is not an option? Unless this is a totally hypothetical situation and you are curious ONLY about how enforceable a ROFR is and there is no sale horse.
Since I can only hit “like” once, I’m just going to refer the OP and everyone else back to post 24, where Guilherme nailed it.
For anyone who thinks a properly drafted ROFR isn’t enforceable, I’d suggest checking into it. Whether you’re satisfied with the remedy or not - and that may be damages and not the horse - is a different question.
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When I say it’s not enforceable, what I mean is one most likely won’t get the horse back. I feel like it’s a complete waste of resources to sue over something like this. If the goal is to keep the horse safe and the seller is so concerned that they put damages for breach of clause and make it known the buyer will be sued for it, they should just keep the horse or lease it out.
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Depends where you live, depends on your lawyer, and depends how much money you want to spend.
In most cases, I would say the clause is NOT enforceable in court because in most cases you aren’t going to win. There’s just too many variables.
You can stipulate the amount all you want, but the buyer can always counter with:
“Poppins has had 8 years of training with me and is now worth $300,000 because of the time I have invested with him, and the stipulated price in the contract of $100,000 is no longer accurate.”
A horse cannot be valued in the same way that other property can be valued.
Or vice versa, maybe Poppins broke its leg and is now worth zero, yet the contract states the former owner needs to pay $100,000 to buy the horse back.
You can stipulate all you want, but things can change the next day after you sign the contract. And it can be either a good thing or a bad thing for the original owner.
Nope. Keep the horse if it’s truly a “lifetime” horse. Don’t sell it.
If a person is willing to go to court and spend big $$$ to get their horse back … don’t sell it!
Lease it instead.
Using the OP’s own criteria “money available to enforce contract.” If they’ve got the jack then they can litigate until they run out.
The idea expressed in No. 40 that once you sell something you no longer have any say is not correct. When you buy you buy what the seller is selling. If they limit what they sell (as with a FOFR clause) then that’s what you bought. Not saying this is wise, only that they can do that.
If they’ve got the money for litigation then they have the money for humane euthanasia or some sort of “retirement” until the money runs out. Then they can specify the last bit in the “kitty” goes for humane euthanasia.
Tying up property that somebody used to own is a silly, but legal, strategy.
G.
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Ah, that doesn’t make it unenforceable: that means you won’t be satisfied with the remedy. And that’s personal - I won’t argue with it - but there are people who do care about damages, on both sides.
Keeping the horse isn’t always an option or the best option. I’ve seen too many people take better care of their own horses than lease horses. But that doesn’t matter here because the OP has already decided to sell, for whatever reason. My preference personally is an ROFR and maintaining a good relationship with the buyer, and hopefully adding future buyers down the road.
Only way I think this could work is if the horse stayed on the owner’s farm.
That said, what’s in it for the buyer who pays for the “high dollar horse” but doesn’t get to treat it as his property… and his profit. Or will you be willing to buy it back at whatever future price the new owner says? I ask only because the root of all failed contracts is a deal that’s irrational for one or both sides. If you create unworkable terms, the agreement won’t, in fact, work.
I think you might run into the problem with that part of the Bill of Sale where the seller attests that there are no liens on the animal and it is theirs to sell. With the sales agreement you have in mind-- the horse really becomes someone else’s property in exchange for money, both of these conditions can be met by the Seller. Your First Right of Refusal thing doesn’t amount to any kind of financial stake in the animal. So I don’t think you should count on winning the argument that the horse sold on to a third owner was actually stolen from you. That said, your buyer will need to get a Bill of Sale from you and hang onto that document.
ROFR =/= lien
Again, ROFR just means the original seller and the new owner have an agreement to negotiate before the horse is sold on the open market. The specifics of this can vary. But it in no way gives the original seller any kind of ownership interest in the horse that would follow it like a lien.
Agree with Guilherme.
If you are thinking you may share in the increased value if the horse shows and the rider/buyer tries to ‘flip’ them, then an observation is that ROFR, properly worded, might work but not forever - in other words if you sell the horse at 5 and the horse is ‘flipped’ at 6, then your interests might be protected. If you sell the horse at 5 and then try to ‘share’ in ‘improvement’ when s/he reaches 15, much less likely.
One thing you could do for disputed ownership (transfer of sale) is notify USEF of the dispute and I believe they can prevent the horse from showing in the new buyer’s name - if the dispute has some merit to it (documentation !!!).
It is really hard to keep track of the horse if they leave your property as others have said.
Have you considered selling HALF of the horse? (and possibly maintaining a portion of expenses?). that would give you a better standing to have an interest in the horse’s future.
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I can potentially see this working if it’s an in-barn A/O buyer (so a lease won’t work) who doesn’t have funds for, say, a 100,000+ horse, but maybe does have funds for 50K horse and for shows/training, or whatever “high dollars” mean in this case. Or if it’s a good horse that is sound and jogs, but won’t pass PPE. So theoretical new owner knows they wouldn’t be able to sell it for a profit either because no one else wants to own a horse with that set of issues, whatever they might be.
It’s kind of like a magical unicorn buyer: They need enough money to develop fancy (green?) horse, but not so much to buy one outright for $$$, and to be in it for the experience and appreciative of horse’s ability to further their showing. AND they would care enough about the horse not to just use it up and give/sell it back. I have no idea how you’d find a potential buyer like this, unless you were already close enough to someone to know their financial circumstances and riding ability/goals. And even then, it all has potential to go south and you can still lose track of the horse if they leave or sell to someone else.
Or, possibly, you have to find someone who “doesn’t care” about money (and doesn’t necessarily need the forever-home-50%-discount), and will keep horses forever, but I’ve really only seen this after horse performs well for new owner – which you don’t know until it’s been proven, usually over several/many years of showing. In that sense, I think forever homes are only forever in retrospect? because you never really know what could happen.
I understand this. I didn’t explain well. I think when most people ask and answer enforcing ROFR, it is with the outcome of getting the horse back.
I am curious to know if this is a hypothetical sale horse or actual sale horse.
Either way I think people who would structure a contract like the OP wants are better off not selling horses period. I can’t imagine any perspective buyer agreeing to those terms. Especially if it’s so the OP can continue to reap the benefits of a price increase on the horse.
Not really. In the case of the warmblood, he was likely discounted due to the Right of First Refusal. My clients typically buy with the intent of a lifetime home, but circumstances can change, and the idea of buying a horse, and having to pretty much give it back, just didn’t make sense. We may as well lease at that point. In practice it might have worked fine, but the IDEA of it turned us away.
And of course a right of first refusal doesn’t guarantee that the new owner will provide a good home themselves either, and doesn’t offer you any protection should they stop providing adequate care themselves.
The only thing it really seems to do is prevent the new owner from making $$ on the horse, and instead gives the seller the ability to make the money by buying the horse back at a discounted price after it’s skills have been developed.
Keeping a part interest in the horse, as mentioned above, might be the alternative option that offers real control, although not sure how that would affect an Amateur owner.
I suppose I am not the typical, but I’m about to sign a bill of sale with a ROFR for the purchase price. Horse is hitting middle age, is being sold to me by a friend for less than half of her value, because she believes I’ll give her a forever home and a good one. Given all of that, I’m okay with signing and offering her back for the same price if we ever did sell the horse. I wouldn’t feel right getting the horse at a steal because of her emotion and then demanding more money from her at a later date.
I would not sign if I had any reason to believe that I would be increasing the horses value with training, showing, etc. I don’t think its a fair ask if the new owner would increase value and then expect them to give you the green price two years later.
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Your situation is a bit different. You are purchasing from a friend and you do not believe the price will go up.
I signed a contract with a ROFR and I have no problem doing so. I wouldn’t, like you, sign one for a green horse to be offered at original purchase price.
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Interesting Karma. This thread:
was right below THIS thread. Appropriate.
The hard truth was stated rather eloquently by Overandonward in that companion thread:
[I]We humans have cracked ideas about our horses’ purpose and destiny. That’s in our heads, and the world isn’t expecting anything at all. If they are grazing and living safely in a herd and pooping grass seeds coated in fertilizer, they are fulfilling the only destiny nature ever had in mind for them. 
Horses are born into a terribly uncertain world, from their point of view. Very few have an owner who has a lifetime plan for them. I’m glad that people generally are more aware of this than maybe they were once.[/I]
The only word I would delete from the above quote is “safely” in the last sentence of the first paragraph. Horses are prey animals. In a State of Nature they are most assuredly NOT “safe.” Life in the State of Nature for every animal is nasty, mean, brutish and short. Everything out there eats, gets eaten, or both. We humans try and create “rules” for natural world but they are mostly observations and very frequently not very accurate ones.
When we humans remove the horse from the State of Nature we remove much of the risk that it faced there. But we don’t remove the survival strategies that a couple of million years built into the horse to ensure propagation of the species. We spend a vast amount of time, effort, and money using, modifying, or removing those strategies so the horse is more useful to us. We have entire training systems from “natural horsemanship” and Parelli and Buck and Tom but these are all just more PC ways of doing the use, modification, or removal of instincts. Sadly, the amount of sheer fantasy built into some of these systems is mind boggling. But it makes money for the trainer and that’s OK. I guess.
As long as we maintain a commitment to the “cracked” ideas that are so popular nowadays the equine industry will continue to struggle and die.
On the question in the OP, the ONLY way to ensure a future for any horse is to keep it. Period. And even that is not really a “period” because circumstances can change. A full bank account today can become an empty account tomorrow if some personal tragedy strikes the owner. That means to ENSURE that no abuse ever comes to an un-serviceable horse the only answer is to kill it (of course we use the synonym “euthanize”). But that is at odds with many of the other “cracked” notions that we have developed about horses (that they can love, that they have senses of humor, that they engage in non-physical communication, etc.). Quite the Gordian Knot, eh?
But, at the end of the day, keeping the horse is the most probable way to prevent abuse.
G.
