Breeding Warranties
National Beef Association Terms and Conditions of Sale Incorporating Bull Breeding Warranty and Female Breeding Warranties
For use at Pedigree Cattle Auction Sales
held under the Auspices of the Highland Cattle Society
IMPORTANT:
THESE TERMS AND CONDITIONS OF SALE (HEREINAFTER REFERRED TO AS "TERMS") CONTAIN PROVISIONS BY WAY OF EXCLUSION AND LIMITATION OF LIABILITY IN FAVOUR OF THE VENDOR.
1 DEFINITIONS
1.1 In these Terms:
"FERTILE" in respect of a female animal means capable of
conceiving by natural service and of carrying a calf for twelve weeks
and the words "INFERTILE", "FERTILITY" AND "INFERTILITY" shall
be construed accordingly.
"INCAPABILITY" in respect of a bull means incapability of getting stock by natural service and the words "CAPABILITY" and "INCAPABLE" shall be construed accordingly
"MAIDEN HEIFER" means a heifer which has never been served by natural means or artificial insemination
"PURCHASER" means:
(a) the successful bidder for any animal in the sale, or
(b) the successful bidder together with such one or more persons
with whom the said bidder is in partnership, or engaged in a joint
venture, and whose names shall have been notified to the Auctioneers
on the day of the sale
"SERVICE" without qualification means both service by natural means and service by artificial insemination and the words "SERVE" and "SERVED" without qualification shall be construed accordingly.
"SHIPMENT" means the sending or taking of an animal outside the United Kingdom.
2 BASIS OF THE CONTRACT
2.1 These Terms shall (subject to Clause 2.2 hereof) form the basis of the Contract between the Vendor and the Purchaser and from the said Contract all conditions and warranties implied under the Sale of Goods Act 1979 or any other statutory enactment or implied by law or custom are expressly excluded subject to the Unfair Contract Terms Act 1977, or any statutory re-enactment or modification thereof.
2.2 These Terms may not be varied in any way except by an announcement by the Auctioneers before or at the time of the sale and, apart from such accouchement, no servant or agent of the Vendor has authority to make any representation, waiver or variation of inconsistent with any of these Terms or to make any collateral contract or other arrangement to which these Terms do not apply.
2.3 Neither the National Cattle Breeders Association nor any of its Breed Society members accept any liability arising out of the use or application or form of these terms.
2.4 Only animals owned by a member of a Pedigree Cattle Breed Society registered in the United Kingdom and affiliated to the National Cattle Breeders Association and entered in the Herd Book of such Society or registered as supplementary thereto shall be offered for sale under these Terms.
3 GENERAL WARRANTIES
3.1 Each animal offered for sale has been bred by the Vendor unless otherwise stated in the Sale Catalogue or by the Auctioneers at the time of sale.
3.2 The Vendor guarantees the identity, correctness of pedigree history and description of each animal submitted for sale and contained in the Sale Catalogue (including all flushings for embryo transfer, caesarian operations and calvings recorded) save to the extent that any misdescription would be apparent on inspection or unless specifically amended by an announcement by the Auctioneers before or at the time of the sale.
4 BULL BREEDING WARRANTY
4.1 Subject to the provisions of Clauses 4.2, 4.3, 6, 8 & 11 hereof each bull over the age of eight months at the date of the sale is sold with a warranty by the Vendor that it is capable of getting stock by natural service from fourteen* months of age which shall be deemed to be fulfilled as soon as four females or fifty percent whichever shall be the lesser number of animals put to the bull are in calf to the bull by natural service subsequent to the sale.
4.2 Trial Period
The Purchaser shall give the bull sufficient time and opportunity to prove itself capable of getting stock by natural service while applying the standards of good husbandry and management and, subject to Clause 4.3 hereof, in any event within two calendar months of the date of the sale or within two calendar months of attaining the age of fourteen* months (whichever is the later).
4.3 If upon purchase of the bull it is found impracticable for the Purchaser to try the bull fairly within the period stated in Clause 4.2 above due to the Purchaser's normal calving programme the Purchaser shall on the day of the sale give the Auctioneers notice in writing of the month in which it is proposed to commence using the bull. At the discretion of the Vendor (in consultation with the Auctioneers) the Auctioneers may extend the date of the commencement of the trial period OT the first day of the month in which the Purchaser has notified them as aforesaid that he proposes to commence using the bull. The Auctioneers shall notify the Purchaser in writing whether or not the Vendor will use his discretion as aforesaid within seven days of receipt of the said notice in writing from the Purchaser.
5 FEMALE BREEDING WARRANTIES
Subject to the provisions of Clauses 6,8, and 11 hereof:-
5.1 MAIDEN HEIFERS
Every maiden heifer over the age of twelve* months at the date of the sale is sold with warranties by the Vendor
5.1.1 That it is fertile from the age of twenty-four* months up to the age of forty-two* months which warranty shall be deemed to be fulfilled as soon as such animal is certified by a Veterinary Surgeon to be not less than twelve weeks pregnant PROVIDED ALWAYS THAT no claim under this warranty shall be admitted before the animal reaches the age of thirty-three* months (except in a case where a Veterinary Surgeon certifies that it is suffering from an abnormality or malfunction of the reproductive system which will permanently prevent fertility)
And
5.1.2 that it is not in calf
5.2 HEIFERS RECENTLY SERVED
Every heifer over the age of twelve* months at the date of the sale described in the Sale Catalogue or by the Auctioneers at the time of the sale as having been served less than twelve weeks prior to the sale is sole with warranties by the Vendor
5.2.1 that it shall be fertile from the age of twenty-four* months up to the age of thirty* months, which warranty shall be deemed to be fulfilled as soon as such animal is certified by a Veterinary Surgeon to be not less than twelve weeks pregnant PROVIDED ALWAYS than no claim under this warranty shall be admitted before the animal reaches the age of twenty-four* months (except in a case where a Veterinary Surgeon certifies that it suffering from an abnormality or malfunction of the reproductive system which will permanently prevent fertility) and
5.2.2 that if it is in calf it is in calf to the bull described in the Sale Catalogue or by the auctioneers at the time of the sale PROVIDED ALWAYS that no warranty is given or to be implied that such heifer is in calf at the time of the sale
5.3 COWS UNSERVED
Every cow under the age of ten* years at the date of the sale and described in the Sale Catalogue or by the Auctioneers at the time of the sale as unserved since last calving is sold with warranties by three Vendor.
5.3.1 that it shall be fertile for a period of twenty-six weeks from the date of the sale, which warranty shall be deemed to be fulfilled as soon as such animal is certified by a Veterinary Surgeon to be not less than twelve weeks pregnant, and
5.3.2. that it is not in calf
5.4 COWS RECENTLY SERVED
Every cow under the age of ten* years at the date of the sale and described in the Sale Catalogue or by the Auctioneers at the time of the sale as having been served less than twelve weeks prior to the date of the sale is sold with warranties by the Vendor.
5.4.1. that it shall be fertile for a period of twenty-six weeks from the date of the sale, which warranty shall be deemed to be fulfilled as soon as such animal is certified by a Veterinary Surgeon to be not less than twelve weeks pregnant, and
5.4.2 that if it is in calf it is in calf to the bull described in the Sale Catalogue or by the Auctioneers at the time of the sale PROVIDED ALWAYS that no warranty is given or to be implied that any such cow is in calf at the time of the sale.
5.5 FEMALES IN CALF
Every cow or heifer stated in the Sale Catalogue or by the auctioneers at the time of the sale to have been served on a date ("the service date") not less than twelve weeks before the date of the sale is sold with warranties by the Vendor
5.5.1 that it is in calf, and
5.5.2 that it is in calf to the bull described in the Sale Catalogue, or by the Auctioneers at the time of the sale, and,
5.5.3 that the expected calving date will be within a period of 263* to 303* days of the service date
5.6 FEMALES "RUNNING WITH THE BULL"
Every cow or heifer described in the Sale Catalogue or by the Auctioneers at the time of the sale as "running with the bull" up to a date not later than twelve weeks before the sale is sold with warranties by the Vendor
5.6.1 that it is in calf, and
5.6.2 that it is in calf to the bull described in the Sale Catalogue or by the Auctioneers at the time of the sale, and
5.6.3 that it is in calf to a service date at any time between the dates stated in the Sale Catalogue or by the Auctioneers at the time of the sale and that the latest expected calving date will be within a period of 263* to 303* days of the last possible service date
5.7 FEMALES WITH VETERINARY SURGEON'S CERTIFICATE OF POSITIVE PREGNANCY DIAGNOSIS
Every cow or heifer stated in the Sale Catalogue or by the Auctioneers at the time of the sale to be sold with a Veterinary Surgeon's Certificate of positive pregnancy diagnosis is sold with warranties by the Vendor
5.7.1 that is in calf, and
5.7.2 that it is in calf to the bull described in the Sale Catalogue or by the Auctioneers at the time of the sale, and
5.7.3 that the expected calving date will be within a period of 263* to 303* days of the service date stated in such Certificate notwithstanding that the said cow or heifer would not otherwise be sold with the benefit of the above warranties
6 LIMITATIONS ON THE APPLICATION OF WARRANTIES
6.1 None of the warranties in clauses 4 and 5 above shall apply
6.1.1 to any cow or heifer which has been subjected after birth or is subjected after the sale to any process involving the technique of embryo transfer, unless that animal's subsequent natural breeding record (as declared in the Sale Catalogue) indicates not less than one natural calving since the said embryo transfer
6.1.2 to any cow or heifer which has undergone a caesarian operation (as declared in the Sale Catalogue) unless that animal's subsequent natural breeding record (as declared in the Sale Catalogue) indicates not less than one natural non-surgical calving since the said operation
6.1.3 to any cow or heifer which is declared by the Vendor to be a twin to a bull, unless before the sale pregnancy has been certified in writing by a Veterinary Surgeon following rectal examination or the animal has produced full term calf
6.1.4 to any animal which has not been maintained by the Purchaser at all times since purchase in a normal breeding condition, in accordance with the rules and practice of good animal husbandry and management
6.1.5 to any animal purchased for export outside the United Kingdom unless a claim shall have been notified within the time limits imposed by Clause 8.1.2 hereof and proved correct (after all examinations and procedures deemed necessary by the Veterinary Surgeons appointed under these Terms have been carried out) before the date on which shipment of the animal takes place
6.1.6 to any animal which has been rejected at the date of the sale by its Breed Society Inspector or Inspectors appointed for the purpose of that sale
6.1.7 to any animal which after the sale has contracted an illness or suffered an injury which may affect its fertility or capability as the case may be after the sale
6.1.8 to any animal which does not remain the property of the Purchaser unless it was purchased by means of a hire purchase agreement and the title to but not the right to possession of the animal has therefore been transferred to a finance or other hire purchase company
6.1.9 to any animal which does not survive until the completion of all examinations and procedures deemed necessary by the Veterinary Surgeons appointed under Clauses 8 and 9 hereof
6.2 No warranty is given or to be implied that a cow or heifer will carry a calf full term or deliver a live or viable calf
7 UDDER AND CLEANSING WARRANTIES
Unless otherwise stated by the auctioneers at the time of the sale
7.1 every cow in calf or in milk and every heifer in milk at the time of the sale is sold with a warranty that it is sound in the udder and teats at time of the sale PROVIDED ALWAYS that any claim under this warranty shall be made to the Auctioneers not later than one hour from the close of the sale and if the Auctioneers in their absolute discretion (having taken such veterinary advice as may be appropriate) decide that the udder is not sound in all respects, the sale of such animal shall be cancelled, and
7.2 every freshly calved cow or heifer is sold with a warranty by the Vendor that it has satisfactorily cleansed before the sale PROVIDED ALWAYS that:
7.2.1 any claim under this warranty shall be made, accompanied by a Veterinary Surgeon's Certificate, to the Auctioneers not later than three days from the date of the sale, and
7.2.2 without prejudice to the rights of the Purchase set out in Clause 11 hereof, the Purchaser shall have the right to arrange such Veterinary treatment to the animal (the cost of which shall be borne by the Vendor) as may rectify the animal's condition.
8 CLAIMS AND TIME LIMITS
8.1 A claim by a Purchaser under any of the above warranties shall not be valid unless:-
8.1.1 the animal remains the property of the Purchaser except where it was purchased by means of a hire purchase agreement and the title to but not the right to possession of the animal has therefore been transferred to a finance or other hire purchase company
8.1.2 the Purchaser shall have given notice in writing to the auctioneers of the intended claim as soon as evidence supporting the claim comes to the Purchaser's notice in any event within the following time limits:
8.1.2.1 Under Clause 4 in the case of a bull:
within six calendar months:-
(a) from the date of the sale; or
(b) from the date when the bull attains the age of fourteen* months; or
(c) from the date of the commencement of the trial period stated in Clause 4.3 above whichever is the later date
8.1.2.2 Under Clauses 5.1.1 and 5.2.1 in the case of a maiden heifer or a heifer recently served:
(a) within three calendar months from the date of the sale; or
(b) within one calendar month from the date when the heifer attains the age of thirty* months whichever is the later date
8.1.2.3 Under Clauses 5.1.2 and 5.3.2 in the case of a maiden heifer or a cow which was sold as unserved and which subsequently proves to be in calf:
within twenty-six weeks from the date of the sale
8.1.2.4 Under Clause 5.3.1 in the case of a cow sold as unserved since last calving and which proves infertile:
within twenty-six weeks from the date of the sale
8.1.2.5 Under Clause 5.4.1 in the case of a cow sold as recently served and which proves infertile:
within twenty-six weeks from the date of the sale
8.1.2.6 Under Clauses 5.2.2 and 5.4.2 in the case of a cow or heifer which, although not warranted to be in calf, produces a calf to a bull other than that stated to be the service sire:
within fourteen days from the calving date
8.1.2.7 Under Clauses 5.5.1, 5.6.1 and 5.7.1 in the case of a cow or heifer sold as being in calf or sold as running with the bull, and which proves not to be in calf:
within twenty-eight days from the date of the sale
8.1.2.8 Under Clauses 5.5.2, 5.6.2 and 5.7.2 in the case of a cow or heifer which, having been warranted to be in calf, produces a calf to a bull other than that stated as the service sire in the Sale Catalogue or by the Auctioneers at the time of the sale as the case may be:
within fourteen days from the calving date
8.1.2.9 Under Clauses 5.5.3, 5.6.3 and 5.7.3 in the case of a cow or heifer which, although in calf, does not calve to the stated service date:
within fourteen days from the expected calving date
8.1.2.10 Under Clause 7.1 in the case of a cow or heifer whose udder is not sound:
within one hour from the close of the sale
8.1.2.11 Under Clause 7.2 in the case of a cow or heifer which has not satisfactorily cleansed before the sale:
within three days from the date of the sale
Claims procedure
8.1.3 in the case of a claim under Clauses 4,5.1.1, 5.2.1, 5.3.1 or 5.4.1 the Purchaser shall within thirty days of the receipt of a Bull Fertility Report Form or a Female Fertility Report form, as the case may be, return it to the Auctioneers, completed by a Veterinary Surgeon appointed by the Purchaser
8.1.4 the Veterinary surgeon appointed in accordance with sub-clause 8.1.3 hereof certifies in writing that:-
8.1.4.1 the animal is in a normal breeding condition, and
8.1.4.2 the animal's infertility or incapability as the case may be is not due to illness contracted or an injury suffered after the fall of the hammer, and
8.1.4.3 in the case of a bull he has examined the cows and heifer on which the bull has been tried and has found them to be in normal breeding condition and that they are not responsible for the bull's incapability, or
8.1.4.4 in the case of a cow or heifer, he has examined any bull with which the cow or heifer has been running after the sale and has found the said bull to be capable of getting stock by natural service
8.1.5 in the case of a claim under Clause 5.1.2, 5.3.2, 5.5.1, 5.6.1 or 5.7.1 the Purchaser shall, when notifying such claim, forward to the Auctioneers a Certificate from the Purchaser's Veterinary Surgeon certifying that the animal is or not in calf as the case may be
8.1.6 in the case of a claim under Clauses 5.2.2., 5.4.2, 5.5.2, 5.6.2 or 5.7.2 the Purchaser shall, when notifying such claim, forward to the Auctioneers a Report from the Purchaser's Veterinary Surgeon giving his opinion that the animal has produced a calf to a bull other than that stated to be the service sire
8.1.7 in the case of a claim under Clause 5.5.3, 5.6.3 or 5.7.3 the Purchaser shall when notifying such claim, forward to the Auctioneers a Certificate from the Purchaser's Veterinary Surgeon certifying that the animal has not calved to the stated service date
where any claim concerns an animal purchased for export outside the United Kingdom it shall have been notified and proved correct (after all examinations and procedures deemed necessary by the Veterinary Surgeons appointed under these Terms have been carried out) before the date on which shipment takes place or before the relevant period in sub-clause 8.1.2 (whichever shall be the earlier date)
8.1.8 the animal shall survive at least until the completion of all examinations and procedures deemed necessary by the Veterinary Surgeons appointed under Clauses 9 and 10 hereof
8.2 Where notice of al intended claim is given to the Auctioneers in accordance with sub-clause 8.1.2 the Auctioneers shall immediately inform the Vendor and the Secretary of the Breed Society with which the animal is registered, and forward to the Vendor a copy of the relevant Report Form if applicable.
9 EXAMINATION OF ANIMALS
9.1 Upon receipt by the Auctioneers in accordance with sub-clause 8.1.2 of any notice of claim under any of the above warranties the Purchaser shall permit a Veterinary Surgeon appointed by the Vendor to examine the animal should the Vendor desire such examination.
10 DISPUTES
10.1 Any disputes as to the condition, fertility or capability of an animal under the warranties contained in these Terms shall be determined by a Veterinary Surgeon appointed by agreement between the Purchaser and the Vendor or in default of such agreement appointed by the Auctioneers
10.2 The Veterinary Surgeon shall have the power to make such directions including (but without prejudice to the generality of such directions) directions under sub-clause 10.3 below and to make such investiations as he thinks fit and the Purchaser and the Vendor shall comply with such directions and shall co-operate in such investigations and shall provide such records and information to the Veterinary surgeon as he may require
10.3 If the Veterinary Surgeon so appointed decides that further opportunities are required to prove whether or not a bull is capable of getting stock by natural service or, as the case may be, whether or not a cow or heifer is fertile, he shall direct under what conditions and within what timescale such opportunities shall be afforded, and the Purchaser shall, if so directed by the Veterinary surgeon, allow the Vendor to remove the animal from the Purchaser's premises and the Vendor shall, if so required by the Veterinary Surgeon, afford such opportunities as the Veterinary Surgeon may direct and shall before removal of the animal lodge with the Auctioneers the whole amount of the purchase money (or such part of it as the Purchaser has paid) of the animal, interest thereon to accrue for the benefit of the Vendor pending the outcome of the dispute.
10.4 The Veterinary Surgeon's decision as to the condition, fertility or capability as the case may be of the animal shall be final and binding upon the Vendor and the Purchaser, PROVIDED ALWAYS that the Veterinary Surgeon may decide in favour of the Vendor if in his opinion the cow or heifer would have proved fertile or the bull would have proved capable of getting stock by natural service within the terms and period allowed by the relevant warranty if within that period the appropriate opportunity of veterinary treatment had been given or proper management or principles of good husbandry had been applied.
10.5 If the Veterinary Surgeon decides in favour of the Vendor, then the Purchaser, or if he decides in favour of the Purchaser, the Vendor, shall pay or reimburse all veterinary and laboratory fees and any reasonable transport costs incurred by both parties in the course of the dispute.
11 LIMITATION OF RIGHTS ON BREACH OF WARRANTY
11.1 Upon breach of any warranty contained in these Terms the Purchaser shall have the right to return the animal, together with any calf sold at foot or born subsequent to the sale and recover from the Vendor:-
11.1.1 the purchase money or such part of it as the Purchaser has paid;
11.1.2 interest thereon calculated on a daily basis at two per cent above the Base Lending Rate from time to time in force at Lloyds Bank plc from the date upon which notice of the claim was received by the Auctioneers to the date of return or the date of disposal of the animal as the case may be;
11.1.3 the expense of transporting any such animal to and from the Purchaser's premises;
11.1.4 the reasonable coast of any such animal's keep, from the date on which notice of the claim was received by the Auctioneers to the date of return to the Vendor's premises or the date of disposal of the animal as the case may be, not exceeding the slaughter carcase value of the animal at the date of return, which sum shall be assessed by the Auctioneers, whose assessment shall be final and binding upon the Vendor and the Purchaser;
11.1.5 the reasonable expenses (including laboratory fees) at any Veterinary Surgeon employed for the purposes of investigating the animal's condition, fertility or capability as the case may be and for making a claim under these terms
BUT THE PURCHASER SHALL HAVE NO RIGHT TO CLAIM DAMAGES FROM THE VENDOR IN RESPECT OF:-
(I) ANY INDIRECT OR CONSEQUENTIAL LOSS SUCH AS BUT NOT LIMITED TO LOSS OF PROFITS, OR
(ii) ANY OTHER LOSS WHATSOEVER
12 TIME LIMITS
12.1 Time shall be of the essence of all Terms in which time limits are prescribed and a claim made under any warranty herein will not be admitted unless made within the prescribed time limit provided that where time limited for any person to do anything expires on a Sunday, Bank Holiday or Public Holiday or on a day following next after any such days then such Sunday, Bank Holiday or Public Holiday shall be excluded from the computation of the time
12.2 In the computation of any period of time before or after the sale or any other event, the day of the sale or other event, as the case may be, shall be excluded.
12.3 All periods expressed as a number of days shall be taken to refer to that number of clear days, and similarly for any period of time.
13 ARBITRATION
13.1 Any disputes, other than those determined by the Veterinary Surgeon in accordance with Clause 10 hereof between Vendor and Purchaser shall be referred in accordance with the provisions of the Arbitration Acts 1950 to 1979 and all statutory modifications or re-enactments thereof for the time being in force to a single arbitrator to be appointed by agreement between Vendor and Purchaser or in a default of agreement by the President or a Vice President (or the President's delegate) for the time being of the Royal Institution of chartered Surveyors.
14 NOTICES
14.1 Any notice required to be served on any person shall be deemed to have been duly served if left at or sent by prepaid first-class post to that person at his last known abode or principal place of business and shall if sent by post to that person at his last known abode or principal place of business be deemed to have been received on the fourth day after the date on which it was sent.
15 GENERAL
15.1 If any provision of these Terms is held by any competent authority or Court to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected thereby.
15.2 The headings in these Terms are for convenience only and shall not affect their interpretation.
15.3 The validity construction and performance of these Terms shall be governed by the Laws of England.
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