Random Rant #27 – Contracts

It is common for breeders to require an adoption contract when selling joeys. This can be a new experience for buyers accustomed to getting animals from pet stores and the pound. Today I would like to discuss some common adoption contract features, such as breeding rights, first right of refusal, and health guarantees. Clauses from my contract are included as examples.

Disclaimer

This is not legal advice; I do not hold a law degree nor have any special knowledge of the law. Laws also vary between states, so anything I say here may not apply to laws in your location. Seek expert legal advice in your area for any specific questions.

The example clauses from my contract were originally swiped from Teri Casper when she sold me my boys and have been altered to fit my own needs over the years. Do not take them as legal advice. Consult a local lawyer to craft a legally binding contract suited to your needs.

Deposits

Since there is an 8 week delay between a joey coming out of pouch and being ready for a new home, most breeders ask for a non-refundable deposit when a buyer claims a joey and the remaining balance when the joey goes home. The contract often contains details and stipulations for this deposit money.

1) If Seller is unable to provide a healthy sugar glider, Seller will refund the deposit in full.

As a buyer, be sure the contract does not give the seller the right to keep your deposit if the seller backs out of the sale. Otherwise, you just signed away your claim on the money and the glider. The seller’s reputation is not an indication that this is OK, as very good sellers are also very choosy about their buyers, and will stop the sale if they have any reservations. When I have seen this, the sellers were well-established community breeders that felt justified in keeping the deposit to compensate for the time they could not advertise the joey. I am personally aware of a former Michigan breeder that made a habit of this and pointed to her contract giving her the right to do it. Buyer, beware, and be sure the contract has a line stating that the seller will return your deposit if they back out of the sale.

2) At any point before the sugar glider(s) are delivered, if Seller feels that the Buyer will not be able to provide a suitable home, or for any other reason, Seller has the right to refuse final sale. Any funds (including deposit) given to the Seller by the Buyer will be returned to the Buyer within 14 days. Seller retains ownership rights until delivery.

As a seller, it is a good to have an exit strategy in your contract, if for no other reason than to discourage buyers from believing they gain ownership rights with their deposit. I had to back out of a sale, and the buyer absolutely believed his $30 deposit meant he owned my joey and his lawyer could force me to turn her over. He was wrong, but spelling it out in the contract helps to passively educate buyers.

3) If Buyer backs out of the purchase, the deposit will be forfeited to the Seller.

Deposits are non-refundable when the buyer backs out to compensate the breeder for the loss of advertising time ahead of the joeys’ weaning dates. Younger joeys have higher appeal and marketability, so this is a significant loss to the breeder’s ability to find suitable homes. Deposit amounts vary from breeder to breeder. Some charge a flat rate, some a percentage of the total, and others base it on the glider’s coloration.

4) Buyer must maintain contact with Seller and make plans for a delivery date by the time the sugar glider(s) are weaned, by a previously agreed upon date, or within 14 days of making this agreement, whichever occurs latest. If the buyer fails to pick up the glider by this date, the buyer’s claim on the glider and deposit are forfeited.

It benefits sellers to set a pickup date. Buyers occasionally delay pickup for months, leaving the seller in the awkward position of needing to separate the joey to prevent inbreeding. Having this clause in the contract frees the breeder from the sale if the buyer does not pick up the joey in a timely manner.

Breeding Rights

Buyers seeking to breed should always ask the breeder if their gliders are lineaged and whether they come with breeding rights. Buyers should always discuss breeding plans with the breeder. Open communication leads to improving the health and well-being of countless future generations of gliders.Breeding rights are often spelled out in adoption contracts and give the buyer permission to breed the gliders. Breeding rights should be accompanied by access to the glider’s lineage (list of ancestors) in The Pet Glider Pedigree Database (or Kintraks). Some breeders charge an additional fee for breeding rights and will withhold lineage from pet-only buyers.Both male and female gliders are sold with breeding rights, but it is particularly important for females since they are not spayed. If the breeder does not want the buyer to have breeding rights on a male, they can have the male neutered.It is worth tracking down the original breeder to inquire about breeding rights on an adult glider, as some will sell the rights and provide lineage long after their joey sells. It depends on how well the breeder kept records, and how much information the buyer can provide (OOP date is probably the most helpful detail).

Pet-Only

The opposite of breeding rights is a pet-only contract, which forbids the new owner from breeding the glider. Some breeders will not disclose the lineage of pet-only joeys to discourage breeding without purchasing rights. Pet-only contracts are more important for female gliders because they cannot be spayed, while pet-only males can be neutered.Pet-only contracts should always be used when selling unlineaged, inbred, or rescued gliders, as these should not be sold for breeding.

Unspecified in Contract

Not all sellers include breeding rights or pet-only clauses in their contract, but it is a common feature in the community. If the contract does not specify, the buyer has the legal right to breed but may lack access to the lineage if the breeder did not provide it. Unlineaged breeding is a strong taboo in the glider community, but it is not illegal. Don’t do it, but also, don’t threaten legal action against those who do, because that’s not a thing.

Sellers May Retain Rights

Contracts may allow the seller to retain some of their rights over the glider after the purchase is complete. It is important to read these clauses carefully, and to write these clauses carefully when creating your own contract.

5) Buyer warrants that the sugar glider(s) will be kept in appropriate conditions and habitat and will not be neglected in any manner. Buyer further understands that if there is a failure to uphold any part of this contract, or if the sugar glider(s) are neglected or maltreated, or if there is any failure to provide adequate and necessary medical care, Buyer shall surrender the sugar glider(s) to Seller unconditionally and without financial restitution or compensation.

If the buyer cannot provide a suitable home for the glider, they can surrender them back to me without compensation. For me, this usually comes into play when the gliders need veterinary care that the owner cannot afford to provide, and once when someone had to move on short notice.

For buyers, this clause sounds scarier than it is. Truth be told the seller will have no way to know how the gliders are kept unless the buyer tells them, and no way to acquire the gliders unless the buyer gives them over. Since the buyer is in control of the situation, this clause becomes a protection for the buyer and the gliders, giving the buyer a home of last resort for their gliders in an emergency.

For sellers, avoid adding financial penalties that would discourage buyers from bringing needy gliders back to get help. Fear of punishment won’t do much to prevent neglect, but it absolutely will prevent them from telling you anything.

Right of First Refusal

6) Buyer agrees that the sugar glider(s) will not be resold without notifying the Seller, and to give the Seller ample time to purchase the sugar glider(s) back for a fee of “X”% of the original purchase price unless otherwise agreed upon.

Right of first refusal is common in the glider community and discourages flipping gliders for profit. Community breeders put a lot of effort into vetting and educating buyers, and they want to ensure that any home their babies land in will be suitable.

For buyers, the right of first refusal should also be considered a protection. Adult gliders rarely fetch the same prices as joeys, and rehomers are unlikely to recoup their investment; buyers looking to spend that much will usually buy joeys from a breeder. Having a guaranteed sale to a good home will likely be a blessing.

Not all sellers offer compensation as part of this clause, but probably should because it encourages buyers to adhere to it. I offer 60% and have only had a couple of buyers feel this was too low and unsuccessfully attempt to break contract behind my back (the glider community has its ways ?-thank you again, Keon Sims!), but many more faithfully came back when they needed to rehome.

Health Guarantees

Some contracts specify which party is responsible for the vet bills if the glider turns out to be sick. These four clauses cover my health guarantee:

7) Sugar glider(s) are not guaranteed against accidental death or injury, including but not limited to accidents occurring during or after shipping and delivery.

From the moment the glider leaves the seller’s possession, including into the hands of a delivery service, the seller will not refund the price of a glider that dies from accident or injury.

8) Seller warrants the sugar glider(s) are free of known health or congenital defects at time of sale.

This means the seller will refund the purchase price if the glider being sold has a health or congenital defect at the time of sale, and the seller would presumably keep the glider unless otherwise agreed upon. For instance, if the buyer went to pick up a joey and noticed that the joey was a hermaphrodite (rare but occurs), the buyer can point to this clause and back out of the sale, getting back their full purchase price including deposit.

9) Seller guarantees the health of the sugar glider(s) against illness (not injury) within 72 hours of acquisition. Buyer must have the sugar glider(s)’ health tested within the 72-hour window and submit proof of any health issues for medical reimbursement.

This is the clause that gets the most questions. I explain it like this: “I will never knowingly give you a sick glider. If I unknowingly give you a sick glider, go to the vet within 3 days, get a diagnosis of something likely to have originated from my home, and I will pay the vet bills or refund your purchase price and take the glider back. Do not wait two weeks to go to a vet then expect me to pay the bill, because it is more likely they got sick in your home in than mine.”

This clause is not a contractual obligation to see a vet if the new owner does not suspect the glider to be ill. Buyers may wish to do a wellness checkup with a fecal float to look for intestinal parasites, which can be asymptomatic until they are not. If the wellness checkup finds the glider to be well, the seller is not responsible for paying the vet bill.

10) The sugar glider(s) are not guaranteed against adverse reactions occurring after delivery to the Buyer and incurred as a result of entering their new living arrangement.

Gliders occasionally stress out in a new environment, do not get along with their new cage-mates, have allergic reactions to something in the home, etc. The seller will not refund the gliders’ purchase price or cover vet bills if the glider becomes ill or injured for such reasons.

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