Can a hamster die from being held?
1.1 Applicable Law
Since the amendment to the Civil Code of October 4, 2002, which came into force on April 1, 2003, animals are no longer things (Art. 641a, Paragraph 1 of the Civil Code). However, the change in the law is relativized by Art. 641a, Paragraph 2 of the Civil Code, because insofar as there are no special regulations for animals, the regulations applicable to objects apply to them. Since the law does not have any special provisions for the purchase of animals (exceptions exist only for the purchase of livestock: Art. 198 and 202 OR), the regulations on the purchase of vehicles (= purchase of a movable object, Art. 187ff. OR) still apply. The provisions of the Code of Obligations apply both to the purchase of animals among private individuals and to the purchase of animals in specialist pet shops, although commercial trade in animals requires a permit in accordance with Art. 13 of the Animal Welfare Act (TSchG). It should also be pointed out that the sale of vertebrates to people under the age of 16 in accordance with Art. 110 of the Animal Welfare Ordinance (TSchV) requires the express consent of the owner of parental authority.
Example: Anna (13) comes home with a hamster that she bought from the pet shop with her pocket money. On the one hand, the purchase is subject to the provisions of Art. 187ff. OR, on the other hand also the provisions of the Animal Welfare Ordinance. The contract is not legally valid without the express consent of the mother. The mother can demand that the pet shop take back the hamster for a refund of the purchase price.
1.2 Form of the sales contract
The purchase of a vehicle (= purchase of movable objects, e.g. animals) is generally valid without any form, so it can also be concluded verbally (Art. 11 OR). An exception to this principle applies to warranty claims in the cattle trade (see section 1.13 below): Art. 198 OR stipulates that assurances about certain properties of horses, donkeys, mules, cattle, sheep, goats and pigs are only legally valid in writing are. For reasons of evidence, however, it is advisable to draw up the purchase contract in writing even when buying a pet - especially if the purchase price is high.
Example: A (valid) sales contract arises when the seller and buyer of a horse only verbally agree on the horse to be sold and the purchase price owed for it; the contract does not have to be set out in writing. Only assurances about certain properties have to be recorded in writing (when buying a horse), as otherwise the buyer cannot assert any warranty claims in this regard.
1.3 Preformulated sales contracts
In pre-written sales contracts from professional dog or cat breeders, there are often standardized contractual provisions. Anyone who buys an animal for the first time is understandably confused about the meaning of such clauses and asks themselves the following questions: Should I sign this sales contract and thus also accept the small print, pre-formulated contractual provisions? What rights and obligations do I have from these contractual provisions? Is any disclaimer valid? In such situations, the buyer is advised to read the pre-formulated provisions carefully despite the anticipation of the animal and to only sign the contract when he has understood and agreed to them; if necessary, he should set himself a period of reflection and consult a specialist. The exclusion of liability is particularly tricky, as it is only invalid according to Art. 199 OR if the seller fraudulently conceals the warranty defects from the buyer. In practice, this is likely to occur only rarely, or it can hardly be proven. Therefore, it is generally not advisable to conclude a purchase contract that contains a liability exclusion.
Examples of standard conditions: The seller assures that he is not aware of any obvious or hidden defects or diseases of the dog. The buyer certifies to have viewed the dog. The buyer waives the right to later assert claims that relate to a) the shape or character development of the animal or b) diseases or defects, acquired or inherited, which only appear or are discovered later.
1.4 Subject matter of the sales contract: piece or class debt?
The law links the distinction between piece and species guilt with various legal consequences in terms of risk and warranty, which is why the distinction can be important for the animal buyer. When buying an animal, it is usually a so-called "piece or species purchase", which means that a very specific dog is bought. If, on the other hand, the buyer is indifferent to which dog he buys, and only the breed has been determined, a generic purchase can be assumed.
Example: If any dog from a certain litter is sold, the animal is determined by species. Since the litter only includes a certain number of pups, it is a limited generic debt. If, on the other hand, the animal is precisely identified, namely the dog from a litter which has a white spot between the eyes, it is a piece or species fault.
1.5 Obligations of the seller
The main duty of the seller is to hand over the animal to the buyer and to give him ownership of it. Anyone who sells domestic and wild animals on a commercial basis must also inform the buyer in writing, in accordance with Art. 111 of the Animal Welfare Ordinance, about the needs, appropriate care and animal welfare of the animal species concerned, as well as the relevant legal bases.
Example: If a pet is handed over late and the pet food that has already been bought spoils in the meantime, the seller has to compensate for the damage (spoiled food).
1.6 Buyer's Obligations
In return, the buyer undertakes to pay the seller the agreed purchase price in good time, i.e. within the period agreed with the seller (Art. 211ff. OR). If he is in default of payment, the seller can withdraw from the contract if he notifies the buyer immediately (Art. 214 OR).
Example: The buyer is in a financial bottleneck and does not transfer the purchase price at the end of the month, as agreed with the seller. He risks that the seller will withdraw from the contract after threatening it and that he will have to return the animal to the seller.
1.7 Purchase of animals on “trial” or under certain conditions
From a legal point of view, it is possible to buy an animal on trial (Art. 223ff. OR) or under certain conditions (Art. 151ff.). Such purchase of animals is problematic from an animal welfare point of view because there is a risk that animals will be pushed back and forth several times without necessity.
Example "purchase on trial": The dog is bought «on trial». i.e. the buyer has the option of approving the purchase within a (usually contractually) specified period or not. It is then at the discretion of the buyer not to approve the sales contract without giving a reason.
Example "purchase on condition": The buyer acquires the dog on the condition that he does not molest the cat. If the dog cannot resist chasing after the cat, it can be returned to the pet shop.
1.8 Right of exchange and / or return?
The opinion is often expressed that if an animal is not liked - as in door-to-door sales - it can be "exchanged" within a certain period of time or returned for a refund of the purchase price. This does not apply, however, unless the buyer has agreed a special right of exchange or return with the seller (see "Purchase on trial" or under condition, Section 1.7). Ordinary animal purchases, on the other hand, can only be canceled in exceptional cases against the will of the seller, for example if there is a so-called fundamental error (Art. 24 OR). The contract can also be terminated if the buyer is deceived (Art. 28 OR). It should be emphasized that a fundamental error is only likely to exist in the rarest of cases, and that deception is also very rare in practice.
Example «fundamental error»: An inexperienced dog buyer buys a Jack Russell Terrier for his wife, who has always wanted a West Highland Terrier, because he doesn't know the difference. The seller neglects to point out the mix-up to the buyer because he is happy when he can finally sell the Jack Russell Terrie, a "slow seller".
Example «deception»: A mixed breed dog is sold as a purebred dog with a purported pedigree and a corresponding price.
1.9 "Defective" animal
According to the Swiss Code of Obligations, a defect exists when it removes or significantly reduces the value of the animal or its suitability for the presumed "use" (Art. 197 OR). Insignificant defects can only be reported if the seller has assured their existence. The seller is also not liable for defects that were known to the buyer at the time the contract was concluded or would have been recognizable if the attention required under the circumstances had been applied (Art. 200 OR).
Example: A pedigree-free dog, which is sold by the seller as a thoroughbred dog with a pedigree, is considered defective even if the buyer has not bought it specifically for breeding purposes. In the case of tooth damage, one can speak of a legally significant defect if the animal subsequently has to endure various veterinary treatments over a long period of time.
1.10 Veterinary examination of the animal
Since many defects are not easily recognizable for the layman, it is advisable to have the animal examined by a veterinarian as soon as possible after purchase and to have any defects documented by him. In this way, the risk can be reduced that a defect that actually existed at the time of purchase, but only becomes apparent later, is recognized too late and can therefore no longer be complained about.
Example: The dog buyer goes to the vet with his dog a few days after the purchase. This determines a tooth defect in the young dog, which will also cause problems with the teeth in the final set of teeth. The veterinarian issues a medical certificate in which he documents the dental defect. The dog buyer would not have been able to recognize this deficiency.
1.11 "Two-year limitation period for the assertion of material defects"
The timely notification of defects is an indispensable prerequisite for exercising the warranty claim ("guarantee") in accordance with Art. 197ff. OR. Within this two-year period, which begins with the handover of the animal to the buyer, the buyer can file a complaint against the seller for defects in the purchased item. The seller must be notified of the defects immediately after they have been discovered (Art. 201 Para. 1 OR). Even in the case of hidden defects that arise or only become recognizable later, the buyer must notify the seller of the defect immediately after discovery, ideally with a veterinary certificate and by registered mail. The buyer can interrupt the two-year warranty period by filing a lawsuit or by initiating proceedings. The seller is only liable for defects that the buyer only discovers after two years if he has expressly assumed liability for a longer period of time, or if the seller has deliberately deceived the buyer (Art. 210 para. 3 OR). Attention: Horses are equated with cattle, therefore only a 9-day notice period applies!
Example: Dominik B. buys a dog on April 1st, 2005. He did not consult a veterinarian until early January 2007 because the dog was having trouble eating. The vet diagnoses a tooth misalignment. Dominik B. had the dog treated and only had the idea of reporting the defect to the seller in the summer of 2007, when he received the bill from the veterinarian. The warranty period has already expired: On the one hand, Dominik B. should have seen a vet immediately after the purchase, on the other hand, he should have sued the seller at the latest after the veterinarian's diagnosis and should not have been allowed to wait until the vet's invoice came. The right to a material warranty is statute-barred.
1.12 Buyer's right to choose in the event of defects (reduction or cancellation)
In the event of a timely complaint, the buyer generally has the right to either reduce the purchase price appropriately (reduction) or to return the animal (rescission).
1.12.1 Reduction (purchase price reduction)
In the case of a reduction (purchase price reduction), the difficult question arises as to the amount of the purchase price reduction; if it comes to trial, the judge has a wide margin of discretion. In particular, the expected healing costs must be taken into account. It is controversial whether the buyer is actually entitled to a claim for damages. In such cases, the parties are advised to reach a settlement, as an agreement can save the costs and annoyance usually associated with civil litigation. In addition, the matter is quickly settled, while the outcome of a process remains uncertain for the time being.
Example: The seller agrees to reduce the purchase price by half of the treatment costs for the dental misalignment.
1.12.2 Conversion (return of the animal)
In the event of a significant defect or the lack of a warranted property, the buyer can theoretically also request the conversion (return of the animal against reimbursement of the purchase price) (Art. 208 OR). Likewise, if the purchase of an animal is a generic debt (cf. Section 1.4), he can request a “replacement animal” free of defects. However, it must be taken into account that animals are not things and, if at all possible, should not be pushed around without necessity. From an animal welfare point of view, a reduction should therefore preferably be requested. Ultimately, after a change, both parties have to be financially as if the animal had never been bought. This means that the seller is also responsible for so-called consequential damage caused by a defect, i.e. for expenses incurred by the buyer of a "defective" animal (veterinary costs, transport expenses, legal expenses, etc.). In return, the buyer is responsible for the so-called damage mitigation obligation, which means that he has to keep his expenses as small as possible. Conversion claims can be asserted even if an animal bought healthy dies as a result of a deficiency.
Example: The guinea pig sold as a female is in fact a (not neutered) male. The buyer brings it back to the pet store because he already owns a female guinea pig and wants to avoid unwanted offspring.
1.13 Special feature: Material warranty when buying cattle
Warranty is practically excluded when buying livestock such as horses, donkeys, mules, cattle, sheep, pigs and goats (Art. 198 OR). A duty of the seller to guarantee exists only in the case of a written assurance of properties or in the event of deliberate deception by the seller. With regard to the notice period for defects, it should be noted that it must be made within the very short period of just 9 days. The short period does not apply to the confirmation of pregnancy (Art. 202 OR). Otherwise, the procedure is regulated by the Ordinance on the Procedure for Warranty in Cattle Trade of November 14, 1911.
1.14 Legal Warranty
The seller is not only liable to the buyer for a defect-free animal, but also for ensuring that the animal becomes the property of the buyer. If he sells an animal that does not belong to him, a distinction must be made as to whether the animal was entrusted to him by the actual owner, i.e. was in his care with his consent, or not. If the animal was entrusted to the seller, the original owner can no longer demand it from the buyer, as the buyer has now become the owner. However, if the animal was in the care of the seller at the time of purchase without the consent of the actual owner, the animal buyer must give the animal to the real owner, but according to Art. 934 para. 2 ZGB he can keep himself harmless from the seller and pay the purchase price claim back including interest as well as compensation for any further damage (Art. 193 - 196 OR).
Example: Lisa A. buys a cat from Berta B. In retrospect it turns out that this cat ran up to Berta B. and in reality belongs to Emmi C. Emmi C. can now demand the surrender of the cat. Lisa A. Albrecht, for her part, can demand the reimbursement of the purchase price including interest from Berta B. In addition, she can demand compensation for further damage from Berta B. (veterinary costs, feed, etc.).
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