V OVERVIEW OF THE CHAPTERS The first six chapters relate to title in the horse, including types and acquisition of ownership, forms of bailment, contractual elements of sales and limits on sales such as liens.
Chapters 7 to 266 (2004) 1 UNELJ Judy Bourke and Hayden Opie 14 deal with wrongs or torts in various circumstances, although in relation to the stud farm (Chapter 13) the issues go beyond torts.
Chapters 15 to 18 concern the racing industry in its decision-making and disciplinary processes, income tax related aspects of the businesses of professional gambling and horse racing and breeding, and restraint of trade.
Chapters 1 and 2 deal with the contractual issues of purchasing a horse by negotiation and auction.
This treacherous area for horse owners and would-be owners is also a legal mine-field.
Warranties and their breach, particularly ‘soundness’ and ‘free from vice’ which are so commonly claimed by horse vendors, are given detailed consideration.
The difficulties of making the law ‘generally understood’ emerge in Chapter 1.
Mr Pannam, a scholar in contract law of some note, deals with its legal complexities and the voluminous case law on contracts of sale of horses in a manner that a lay audience is likely to find rather challenging.
This is not a fault that carries through the book, but it does overshadow chapter 1.
Firstly, legal principles could be introduced in a simpler and more direct way.
For example, the chapter includes consideration of the different consequences of innocent and fraudulent representations and whether or not pre-contractual statements have become terms.
A brief summary of the relevant principal concepts located at the chapter’s beginning would have served to guide the lay reader through the ensuing caselaw and legal analysis.
Secondly, there is a risk of overwhelming the author’s non-lawyer readership with references to numerous cases, but at the same time he omits elements that might induce interest and understanding.
The analysis of Budd v Fairmaner14 would be more appealing to readers had they been told the crucial facts – the age of the horse mattered to the purchaser who wanted the horse to complete a pair of matching greys.
His grey was four years old.
The vendor’s horse turned out to be three years old, and horse-wise readers will realise that the misrepresentation exposed the purchaser to the unwelcome prospect that his precious pair of greys would whiten at different times – hence the action.
The concluding Overview to Chapter 1 is a specific and welcome application of the author’s undertaking to make the law ‘generally understood’.
His focus in this area is almost exclusively on racehorses.
The Trade Practices Act 1974 (Cth) now provides the essential background for most racehorse sales, 14 (1831) 8 Bing 48; 131 ER 318. The Horse and the Law 267 substantially replacing the common law.
Mr Pannam’s guidance to those in the racing industry is functional and clear.
On the other hand, he points out that some private sales will fall outside the protective mantle of the legislation and he refers the reader back to the complexity of the old common law and equitable principles.
One wonders whether private, individual buyers and sellers such as pony clubbers, polo players, hunters, show jumpers, dressage riders, farmers and those who simply ride for pleasure and may turn to this book for guidance will be much the wiser.
Chapters 3, 4 and 5 concern the rights and liabilities of the parties involved when a horse is in the possession of one who is not the owner.
These chapters are well written on the whole and the numerous case law examples give good clear guidance, whether summarised or extracted.
Many horses are subject to some degree of bailment; for instance, agistment, loan to a carer, or when ridden on hire from riding schools.
In the case of racehorses, most are subject to bailment all their life, whether a foal on foot with the mare who has gone to a stud for service by a stallion, in training, agisted at a farm for a ‘spell’ from training or racing, or retirement in various forms.
The right to hold a horse as security pending payment of such debts as service fees, training fees, agistment fees and veterinary or farrier fees is of great practical value as it is such a common problem in both the leisure horse and racing horse spheres.
Be warned that the powers of sale are very limited.
Leases and options in leases to purchase or renew, with particular relevance to racehorses, are covered in these chapters, as are the common ways of ending such contracts by forfeiture and frustration.
This section may be rather tortuous for the nonlawyer; perhaps this was one point that Mr Pannam had in mind when quoting the adage in his Preface: ‘Any man who has himself for his lawyer has a fool for a client.’ Chapter 6 explains the ways of acquiring ownership.
Some are straightforward, such as transfer by sale, gift or disposition in a will.
However horse ownership is often a matter of complex and conflicting personal understandings; even if the legal principles are theoretically comprehensible, the beliefs and emotions of horse owners, especially in the world of racing often lead to disputes.
Mr Pannam probes this area with a practical eye.
For example, he addresses the legal problems which arise when conditions are put on the future use of a horse when it is sold or 268 (2004) 1 UNELJ Judy Bourke and Hayden Opie
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