We have a bit of experience with this sort of thing because we co-own every dog we breed, and therefore have a written contract for every dog. The contracts are very specific, and uniquely tailored to each individual dog. They are about 3 pages long, single spaced, and yet, detailed as we've tried to be, we recently had a horrific situation that we’d not covered.
We have found over the years that regardless of a written contract, people are only as good as their individual character. Some people are manipulative, lying, sacs-of-shit, that will screw you blind, no matter what they sign. Others honor their word, and do the right thing in any situation, with or without a contract.
As has been mentioned, there is a culture in the breeding of show dogs where co-ownership is common. The American Kennel Club gives minimum support for co-ownerships (e.g., all owners of the dam need to sign the litter application and the puppy papers are issued in the names of all bitch owners). Still, co-ownerships are the single biggest source of complaints made to AKC. People change their minds, life circumstances change… things pop up that the parties did not foresee, enforcement can be very problematic… litigation is expensive, often far exceeding the value of the animal[s] in dispute.
In equines there is no overarching body like the AKC that would aid in the enforcement of this type of breeding relationship. I think you’d end up with a twenty-page contract that would still miss things, and be difficult and expensive to enforce.
My two cents is that you should keep the mare until you have collected the embryos you desire, and then sell her. Doing so will save you a lot of headaches.
Another thought, in our breed - the top-winning bitches have not been top producers… in fact, many can’t be found in pedigrees after a generation or two. There is a significant difference between great show bitches and great breeding bitches. You might repeat the breeding that produced this mare, and hopefully you’ll get a filly that you can keep for breeding, so that the one mare will have a performance career (enhancing the value of the pedigree), and the other will be your broodmare.
It is not uncommon to do ET on 2 yr olds. My advice to the OP is to have afew recip mares lined up for this filly's 2 yr old year and do it then.
Just like there is a butt for every saddle, there is a buyer for every "deal." But as others have posted, this particular "deal" is rife with potential pitfalls.
For instance, what if the original buyer sells the mare after a year? There is no contract in the world that the seller could actually ENFORCE under this sort of circumstance. At $200+ per hr. for lawyers, it would be cheaper just to do the ET with the filly at age 2-3, then sell her.
That's actually what I'm doing now (only the mare is coming 4). We won't know the results of Attempt #1 till this coming Sunday, but so far I've sunk about $1300 into it (not counting stud fees). If we retrieve an embryo we can add another $300 for the implantation & $270 for the first few mos. of Regumate.
So about $2000 per cycle/attempt...give or take afew 100 each way...
OP, if you do decide to go through with such an agreement, you might also want to include some sort of language to retain the right of first refusal to buy the horse back for the original selling price if the buyer should find herself in a situation where she has to sell the horse before the end of the term of the ET agreement. Or something like that.
Selling a filly, for a lower price, or for the price of a colt (if you usually sell your fillies at higher prices than colts), and asking to retain breeding rights (not exclusive of course) via embryo transfer.
How would you put this down in a contract? Would you keep a certain % of ownership on the filly to be sure that if she sells before you get the # of ET foals you want, at least, you get back a % of the sale, instead of the foals you tought you would get via ET?
Or if you don't keep a % of ownership, would you put a penalty in the contract if the owner sells the filly to a third party before you have the chance to get the # of ET foals out of her you wanted?
Would you call it even if the filly dies or become infertile before you can do it?
Of course there would be a time frame (like... let's say, between the age of 2 (? is it doable at 2 or would it be considered inhumane? I mean, ok the filly would be bred... but she would not carry the foal) or 3, to max 5yo? Would you assume to only get x number of embryos, or would it be linked to a sort of x number of live foals? (as one's know, we can flush 5 embryos and get no live foal...)
I did something like this with two mares that I sold to my trainer, but we had an airtight contract. Instead of full payment for the second mare that she purchased from me, we traded some training and the possibility of two future foals out of the mares. I also paid half the cost of having one of the mares inspected (which was fantastic, because she is now one of the highest inspected mares in our breed!); she covered the inspection cost of the other mare. We agreed that the mares would be bred embryo transfer only (at least while they were performing).
We tried to ET both mares last year, but only got an embryo from one, which did not take in the recipient mare. Since both mares are in training and will be shown extensively this year, I told her last year that I would not worry about trying again. (Plus, I had already invested a ton of money in it and was not to excited to retry at this point.) But, I am hoping that we will be able to give it another go in the future, or at least, breed them after a few years of them competing, when and if she is ready to give them time off.
I did not retain any ownership in the mares. If they sell before I am able to get foals, I would be very disappointed, but that is a chance that I will have to take. I know that she is not interested in selling either one, so chances are good that maybe someday I will get foals out of them. Only time will tell!
I know of it being done. Six figure mare that a breeder had (ironically owned, but not bred) retained controlling ownership of through a partnership with a very good trainer who had brought the mare up the levels. Sold to a different individual, but breeder retained the right to two embryos. Breeder didn't retain ownership at that point, btw. The buyer (or the buyer's trainer, I forget) and the original trainer knew each other-- same level of horse people, etc. so there was some basis for such an arrangement. Not total strangers. They also flew in from far away, so it wasn't a local deal.
Here's where I'm not 100% clear on the details, but I believe if it was too much of a hassle to do the two embryo transfers than there was a $__k buyout by the new owner, and I believe that's how it ended up happening.
The new owner really wanted the horse. If you find someone who wants the horse badly enough then you can probably do it. I wouldn't recommend it, but I also sometimes cynically think a contract is only as good as your willingness to take someone to court to enforce it. So many things could go wrong in this scenario, once you don't have custody.