At The Animal Law Firm, our Boulder, Colorado Animal Attorneys get a lot of questions about ownership rights under a purchase agreement for a dog.
The situation usually goes like this: Elliot buys a dog from ABC Rescue. Elliot signs an adoption or purchase agreement. In the agreement, ABC Rescue has a clause that says, "buyer must provide clean food, water, and adequate shelter for the dog," "if buyer can no longer take care of the dog, ABC Rescue gets the right of first refusal to take the dog back," "if buyer violates any of the terms of this agreement, ABC Rescue reserves the right to immediate take possession of the dog." Or, terms very similar to that. Elliot takes the dog home, the dog has some behavioral problems, and Elliot tries very hard to correct these problems through treats, training, and time. Eventually, Elliot contacts the rescue saying he's at his wits' end and needs their help. ABC Rescue interprets this as an admission of relinquishment and starts demanding that Elliot return the dog to them. Elliot becomes upset that they would try to take his dog from him. ABC Rescue gets mad at Elliot because he's not cooperating. Everyone is upset and one side or the other calls The Animal Law Firm.
The funny thing about contracts is that they are like their own little world that create a new set of "laws," so to speak, that both parties' agree to follow. In other words, if you are in Elliot's shoes:
YOU CAN CONTRACT AWAY YOUR RIGHTS.
If you sign a contract saying that you agree to give back the dog upon demand, even if you view the demand as frivolous, you have to give back the dog. Now, generally speaking, a lot of times the problems that cause a Rescue to invoke the "take the dog back" clause of a contract is due to a misunderstanding that can be worked out without resorting to litigation. After all, most Rescues really just want their dogs to go to good homes and they agreed to let you adopt one of their dogs because they thought you would be a good home. And, chances are, you probably are. But being wishy-washy makes a Rescue nervous and so everyone would benefit from sitting down to talk about the problems and see how things can be worked out -- all for the benefit of the dog.
Nevertheless, the threat of litigation is scary and emotionally draining.
Now, back to the legal analysis:
A contract is deemed to be "unconscionable" only if you were essentially forced to agree to the terms of the contract because you had no other choice (i.e., bargaining with a monopoly with no other meaningful competitors), or the terms are SO outrageously in favor of the party that wrote the contract. Typically, adoption contracts for dogs do not meet the criteria for unconscionability.
What about the government protecting your rights, you ask?
Under the Contracts Clause of the United States Constitution, our Founding Fathers specifically stated that the government (city, state, federal) cannot make any law abridging a person's freedom to make a contract. In other words, the Constitution protects you with the freedom to make or not make any contract you want. The only exception to this rule is contracts that are illegal or void on their face (a contract with someone under the age of 18, a contract to buy/sell drugs or sex, things like that).
The Constitution also protects you from the government taking your property from you - but not anyone else. So if you enter into an agreement to buy something and your continued ownership of that thing rests on your ability to comply with the terms of the contract for the rest of the thing's existence, make sure you really and truly think you can comply with those terms. Because if you don't, you will have a piece of paper that you signed that entitles the seller to take the property back.
Obviously, this is tricky and heartbreaking for everyone involved when it comes to a beloved pet, but if you're unsure about what your risk exposure is in a contract, have an experienced Colorado Animal Attorney review your contract before you sign it.
Our experienced Boulder, Colorado Pet Lawyers are here to help! Call us today for a free 30 minute consultation to find out how we can help you.