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  1. #1
    Join Date
    Jul. 17, 2006
    Location
    Ontario, Canada
    Posts
    1,091

    Default Talk to me about in-utero contracts...

    While browsing online I've seen differences in in-utero stipulations (% of the deposit, when balance is due, whether deposit is refundable or not, etc etc..).

    What are your in-utero contracts like? Do you ask for a 10% deposit? 20 or 25%? Is it non-refundable or refundable only up to a certain point in the pregnancy..?

    Feel free to PM me if you'd prefer. I have a feeling those with slightly "stricter" contracts who prefer to protect themselves a little more might not be so willing to post publicly.

    Thanks!



  2. #2
    Join Date
    Oct. 2, 2007
    Location
    Mirabel, QC
    Posts
    2,656

    Default

    PM me too, I'd love to hear your suggestions
    Last edited by EquusMagnificus; Apr. 21, 2010 at 11:59 AM. Reason: Ack! I can't type!
    www.EquusMagnificus.ca
    Breeding & Sales - Currently: Eventing & Derby prospects
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  3. #3
    Join Date
    Mar. 7, 2007
    Posts
    142

    Default

    I have a foal that sold in utero this year (due in about 3 weeks) with a colt option. I required a 50% deposit, and gave a LFG for 2 weeks for any reason, and then for 2 weeks after that for illness or disease only. Remainder is due within 2 weeks of foaling if it is a colt, or the deposit is forfeited and the colt is mine. If the foal is born a filly then I refund the deposit within 2 weeks of birth. Foaling expenses for the vet are born by the prevailing (colt/filly) party.

    I would be happy to email you a copy of the contract if you would like to see it. It is a bit odd because this was an ET, so the foal is in a recip, so we also had stipulations about who owns the recip and the end, etc.

    Gina



  4. #4
    Join Date
    Jul. 17, 2006
    Location
    Ontario, Canada
    Posts
    1,091

    Default

    Antero - what happens if the mare aborts at, say, 9 months along? Do you refund the entire deposit? Or do you offer to put the deposit towards the re-breed, and if so, what if the buyer declines that offer?



  5. #5
    Join Date
    Mar. 7, 2007
    Posts
    142

    Default

    In my contract I refund the deposit because it has a LFG. I don't see that as any different than if the mare lost the foal at 9 months and there wasn't an in utero contract - I still wouldn't have a foal to sell that year.

    ETA: I don't like having contracts tied together from year to year - it gets too complicated. If something happens like the mare aborts, I refund the money and that contract is finished, and if they want me to rebreed I will do that under a new contract.



  6. #6
    Join Date
    Jul. 17, 2006
    Location
    Ontario, Canada
    Posts
    1,091

    Default

    Thanks, Antero!

    Anyone else?

    I think this is an interesting topic, because it seems to me that if in-utero purchase deposits are always fully refundable, AND the buyer can change their mind right after it's born, then where is the risk for the buyer? Why wouldn't everybody who wants a foal buy in-utero, since a) they get their money back if anything happens and b) they're free to change their mind once it's born..??! Seems to me the buyer is sitting pretty, while the breeder takes on huge expenses and risk when in the end, the in-utero purchase isn't even a guaranteed sale since any deposit is fully refundable?!

    I was always under the impression that an in-utero sale was a way for a buyer to get a nice foal for MUCH cheaper than if they waited until the mare foaled out a "known quantity", BUT - they accept the risk that a) something might happen and they might lose a small deposit and b) it may not turn out to be the colour/sex/size etc. they want...

    Was I totally out to lunch? Does *everyone* offer a zero-risk contract to their buyers..? I am really interested to hear more thoughts on this!



  7. #7
    Join Date
    Nov. 28, 2003
    Location
    MO
    Posts
    4,564

    Default

    My contract requires a deposit and comes with a LFG, meaning the foal passes its well foal check and all is well. However, if the buyer declines the foal simply due to buyer's remorse (changed mind, don't like color, don't like the sex, etc) then the deposit is NOT refundable.
    Courage is going from failure to failure without losing enthusiasm."
    --Winston Churchill
    https://www.facebook.com/pages/Hills...h/112931293227
    www.HillsideHRanch.com



  8. #8
    Join Date
    Mar. 7, 2007
    Posts
    142

    Default

    Quote Originally Posted by Hillside H Ranch View Post
    My contract requires a deposit and comes with a LFG, meaning the foal passes its well foal check and all is well. However, if the buyer declines the foal simply due to buyer's remorse (changed mind, don't like color, don't like the sex, etc) then the deposit is NOT refundable.
    Absolutely, mine too. I have a LFG to make sure the foal is alive, but if it is born with a purple tail and 3 legs that is the buyers problem. My contract specifically states that the Buyer takes on the considerable risk that the foal may be born with defects of the mind or conformation. When I get home tonight I will put up the verbiage that I use.

    Gina



  9. #9
    Join Date
    Feb. 23, 1999
    Location
    Cypress, near Houston, Texas
    Posts
    8,386

    Default

    ASBJumper, I agree that the entire purpose of an in utero purchase is so that some of the risk is spread to the buyer who gets a much better price by sharing that risk.

    My contract calls for 50% down and the balance due 30 days BEFORE birth of the foal. LFG, so refundable only if the foal dies within two weeks of birth.

    Same with custom foal contracts where buyer gets to pick the stallion and the mare he's bred to.
    Visit Sonesta Farms website at www.sonestafarms.com or our FaceBook page at www.facebook.com/sonestafarms. Also showing & breeding Cavalier King Charles Spaniels.



  10. #10
    Join Date
    Dec. 14, 2007
    Location
    Wilsonville, Ontario, CANADA
    Posts
    4,246

    Default

    Here is my contract. I thought it might be worthwhile to post it here so everyone can see it and we can start a discussion on different parts of it that might not be understood or agreed upon. This is the basic start - depending on individual requirements it is tweaked and changed as necessary:


    AGREEMENT FOR SALE OF UNBORN (IN UTERO ) FOAL

    THIS IS AN AGREEMENT BETWEEN_________________________________, hereinafter referred to as "Buyer," and True Colours Farm, hereinafter referred to as "Seller," who is the sole owner of the mare, ________________________________________ , hereinafter referred to as "mare."
    A foal is due to be born to said mare on or about the month of _____________________________, by the stallion __________________________________________________ ____.
    In consideration of the promises and of the recitals set forth herein by Buyer and Seller, Buyer hereby agrees to buy and Seller hereby agrees to sell the unborn foal upon the following terms and conditions:

    1. Cost of Care and Maintenance, Title.
    (a) Seller will, according to the terms of this Agreement, board the mare and the foal at no cost to Buyer until such time as the foal is weaned (in no event earlier than 3-1/2 months after foal's birth) and possession of the foal is transferred to Buyer. The Buyer is responsible for all veterinary and farrier expenses for foal after the foal stands and nurses.
    (b) Seller does and shall retain full title to the mare; however, so long as the foal is in utero, Seller recognizes Buyer's interest in said foal and agrees not to transfer, lease, sell or in any way hypothecate Seller's interest in said mare. Seller further agrees that until the foal has been weaned, Seller shall not sell or in any way transfer or hypothecate Seller's interest in the mare to any other person.
    (c) The term of this Sale Agreement as to the mare and foal shall begin on the date set forth herein and shall terminate when all conditions have been fulfilled and physical possession of the foal is given to Buyer.
    (d) Seller agrees to provide and maintain a proper environment for the mare and foal with all stabling, turnout area, appropriate feed, constant supply of fresh water, veterinary care, and all other reasonable and necessary goods and services for the mare and foal until such time as the foal has been weaned and physical possession of the foal has been given to the Buyer.
    (e) Buyer agrees to pay the board for the foal after the foal has been weaned.
    OR
    Buyer will immediately remove the foal from the premises.

    2. Purchase Price.
    Buyer agrees to pay ______________________ Dollars as follows:
    (a) Upon the signing of this Agreement, Buyer tenders a Deposit in the amount of _______________________ Dollars, the receipt and sufficiency whereof is hereby acknowledged by Seller.
    (b) On or before ________________________________ , Buyer shall deposit in an account held by Seller,
    the amount which is the balance of the purchase price agreed upon.
    (c) The above-referenced balance shall be paid out of the account to Seller upon the fulfillment of the following terms and conditions:
    (i) Mare foals out.
    (ii) The foal stands and nurses.





    3. Conditions Precedent.
    Buyer's obligations to deliver the balance of the purchase price shall be subject to the satisfaction of the following conditions precedent.
    (a) Mare shall give birth to a live foal by __________________________________ on or about _________________.
    (b) Said foal shall be alive and in good health, and be able to stand and nurse, be sound and be both insurable and, in fact, insured by the Buyer immediately after birth, for the full purchase price against all risks, naming
    Buyer as beneficiary.
    (i) If said foal is born dead or fails to stand and nurse and dies, Buyer shall have the right to a foal produced by re-breeding said mare ___________________________________ to the stallion ________________________________
    OR
    Buyer shall be entitled to return of monies paid towards purchase, minus the deposit of ________________________ Dollars.
    (c) All documents which are required by the ________________________________ and ________________________ to effect transfer of the foal from Seller to Buyer have been executed by Seller and delivered to Buyer or Buyer's attorney. It is understood that should the ________________________________ and/or ________________________ or any other entity or body require any other forms or certificates signed by Seller, Seller shall, within seven (7) days of receipt, properly complete and execute and return all documents sent to Seller by Buyer.
    (d) The unborn foal has not in any way been sold to or hypothecated to anyone other than Buyer herein.
    (e) This Agreement and all other documents to be executed by Seller have been duly authorized, executed, and delivered by Seller and constitute valid, legal, and binding agreements enforceable in accordance with their terms.
    (f) The entering into and performance of this Agreement and the documents to be executed by Seller will not violate any judgment, order, law, or regulation applicable to Seller or result in any breach or constitute a default under, or result in the creation of any lien, charge, security interest, or other encumbrance upon a foal pursuant to any indenture, mortgage, deed of trust, bank loan or credit arrangement, or other instrument to which Seller is a party or by which it or its assets may be bound.
    (g) There are no suits or proceedings pending, or to the knowledge of Seller, threatened in any court or before any regulatory commission, board, or other governmental authority against or affecting Seller, which will have a materially adverse effect on the ability of Seller to fulfill his obligations under this Sale Agreement.
    (h) There exists no defect or impediment on the registration of the mare with the ___________________________ and/or the ____________________________________. The ____________________________________ and/or the _____________________________________will issue a certificate for the foal when registration at the ___________________________ and/or the _________________________________________ is requested by the Buyer, showing that its sire is _______________________________, and its dam is ___________________________, and that foal is a duly qualified and registerable foal. Buyer will pay all foal registration fees for the foal.

    4. Possession and Delivery
    It is agreed upon that:
    (a) The Buyer will take physical possession immediately when the foal is weaned.
    (b) The Buyer will make arrangements to transport the foal from the residence of the mare after weaning. All costs associated with the transportation of the foal will be born by the Buyer.
    (c) Any board the foal incurred after weaning is the responsibility of the Buyer.

    5. Taxes.
    Seller agrees to pay and to indemnify and hold Buyer harmless from all taxes, including, without limitation, income, franchise, sales, use, personal property, stamp, or other taxes, levies and post duties, charges, or withholdings of any nature, together with any penalties, fines, or interest thereon, imposed against
    Seller by any federal, state, provincial or local government or a taxing authority with respect to the purchase, ownership, delivery, possession, use, or transfer with respect to the foal. All amounts payable by Seller pursuant to this section shall be payable to the extent not theretofore paid on written demand of Buyer.




    6. Identification of Buyer.
    Seller will, from the date of the signing of these documents to the date that physical possession of the foal is delivered to the Buyer, clearly identify by appropriate markings and/or in any conversations that the foal is owned by Buyer herein and Seller will expressly advise anyone who inquires or indicates any interest in either mare or the foal that Seller no longer has any interest in the foal and the fact the foal is owned by Buyer.

    7. Notice.
    Any notice required or permitted to be given by either party hereto shall be deemed to have been given when deposited in certified mail, postage prepaid, or via courier, and addressed to the other party at the address where indicated, or addressed to either part at such other address as such party shall hereafter furnish to the other party in writing.

    8. Assignment.
    Neither party shall assign this Agreement or their interest thereunder without the prior consent of the other party.

    9. Termination by Buyer.
    In the event that any obligation of the Seller has not been met or if any condition precedent set forth above has not been fulfilled, Buyer shall have the right to terminate this Agreement. Should Seller fail to do so upon demand from Buyer, Seller agrees to pay all costs and reasonable attorney's fees that Buyer may incur to collect said monies from Seller, not to exceed ____________________________ Dollars.

    10. Default.
    In case of default by the Seller, it is expressly agreed that Buyer may either revoke this Agreement and demand an immediate refund of all monies paid, or sue for specific performance and demand strict compliance by Seller with the terms of this Agreement, or any combination of the above and/or together with any and all remedies allowed by law. It is specifically agreed by Seller that should Seller default, whatever remedy or combination of remedies pursued by Buyer, Seller will pay as additional damages all costs, expenses, and reasonable
    attorney's fees incurred by Buyer in enforcing his rights hereunder, not to exceed___________________________ Dollars.
    Should Buyer default, it is agreed by both parties that Seller may retain any deposit monies tendered by the Buyer. The Seller must try to mitigate his or her damages by offering the unborn foal to other sellers. However, in the event that Seller is unable to secure another buyer at the same or greater price than the price originally agreed upon by the parties, the Buyer is responsible for the difference between the contract price and the actual sales price plus any actual or consequential damages incurred by the Seller.

    11. Governing Law.
    (a) This Agreement shall be construed in accordance with and shall be governed by the laws of the Province of Ontario. Any legal action must be brought in the county/municipality of Norfolk Region
    OR
    (b) Arbitration.
    The parties to this Agreement mutually agree that any and all disputes arising in connection with this Agreement shall be settled and determined by binding arbitration conducted in accordance with the then existing rules of the Arbitration and Mediation Institute of Ontario Inc., by one or more arbitrators appointed in accordance with said rules. Said arbitration shall take place in Ontario, Canada.

    12. Liquidated Damages.
    In the event of Seller's default in any of the provisions hereunder, it is agreed by the parties that Buyer's damages could vary widely and would be very difficult to ascertain. Therefore, the Buyer and Seller agree that should Seller default, Buyer has the option of demanding the sum of ___________________ Dollars from Seller as liquidated damages for any of Buyer's claims hereunder. This option shall be of no force and effect unless and until Buyer specifically elects in writing to pursue this remedy.


    12. Entire Agreement.
    This constitutes the entire Agreement between the parties. Any modifications or additions MUST be in writing and signed by all parties to this Agreement. No oral modifications or additions will be considered to be part of this Agreement unless reduced to writing and signed by all parties.


    Dated: ___________________________, 200__ at __________________________________________________ ________



    ________________________________________________ __________________________________________________
    Seller Buyer

    Address:________________________________________ Address: _________________________________________
    ________________________________________________ __________________________________________________
    ________________________________________________ __________________________________________________
    ________________________________________________ __________________________________________________

    Telephone: ______________________________________ Telephone: _______________________________________
    Fax: ____________________________________________ Fax: ______________________________________________
    Email: __________________________________________ Email: ____________________________________________
    Cell phone: ______________________________________ Cell Phone: _______________________________________
    Emergency Contact: ______________________________ Emergency Contact: _______________________________
    ________________________________________________ __________________________________________________






  11. #11
    Join Date
    Oct. 4, 2003
    Location
    Oklahoma
    Posts
    7,391

    Default

    With ours, the in-utero price is at a substantial discount, so the buyer does take the risk on quality. The foal must be paid in full before delivery. If the foal does not thrive or has a birth defect or other significant issue present at birth, the purchase price is refunded or applied to the purchase of another foal. We include expenses related to registration and the routine care of the foal until weaning, but any veterinary care expenses for injuries or illnesses are the buyer's responsibility. We strongly suggest that buyers insure the foal at birth to protect their investment.
    Silver Creek Farms - home of Apiro & Validation
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