The liability of the veterinarian in the purchase or sale investigation

Over the last number of years, purchase or sale examinations carried out by veterinarians have become increasingly important. EU regulations mean that claims by the purchaser are not excluded after only two weeks, as in old German law. Because of this significantly increased risk, the horse seller has a keen interest in having the condition of the horse diagnosed by a veterinarian at the time of sale or delivery in order to prove, if necessary, that the horse was free from defects at that time or to be able to exclude liability in this respect by stating these deficiencies in the purchase contract.
Thus, the question arises to what extent the veterinarian is liable in the investigation to the parties of the purchase contract. If the veterinarian fails to fulfill his professional duty of a complete examination, clarification and documentation, the horse seller is liable because he has not been in a position to point out to the buyer the deficiencies not detected by the veterinary surgeon. If the horse seller is claimed against, he will try to take recourse from the veterinarian.
If one correctly assumes that the veterinarian will act directly on behalf of the horse seller during the sales investigation, namely with regard to the execution of the contractually agreed list of obligations for the examination of the horse to be sold, one can certainly reach a considerable risk potential. The investigation contract is qualified as a working contract (BGH, judgment of 5. 05.1983, VII ZR 174/81, OLG Koblenz, judgment of 25.02.2003, 3 U 1076/02, OLG Hamm, judgment of 26.01.2005, 12 U 121/04). The damage caused by an incorrect veterinary examination result has always been classified as consequential damage and can therefore justify a claim against the veterinarian (OLG Munich, judgment of 6.12.1994, 25 U 4042/94) and includes in particular the purchase price, sustentation and treatment costs. This claim is complementary to the claim against the seller (OLG Hamm, judgment of 26.01.2005, 12 U 121/04) and is not subordinate, so that the buyer can choose who he is going against. For the damage of the client, which has arisen on the basis of an incorrect veterinary examination findings, the veterinarian is liable but only if the incorrect findings based on the specific breach of duty (OLG Celle, judgment of 29. 07. 1994, 21 U 4/94).
However, in the calculation of the amounts to be substituted as a result of the cancellation of the contract or reduction of the purchase price must always include how the misdiagnosis has affected the seller, compared to if the veterinarian had diagnosed correctly. In this case, the seller would then have had a poor horse in the barn that continues to consume fodder, or would have received a lower price in case of sale.
The vet's contractual obligations are not restricted to the horse seller as the principal of the sales investigation, but jurisdiction has developed the legal status of the contract with a protective effect in favor of third parties (OLG Schleswig, judgment of 09.09.1996 - 4 U 121/95, LG Verden, judgment of 05.10.2006 - 4 O 45/06). This case law was confirmed by the introduction of § 311 Abs. 3 BGB (German civil code). This means that the horse buyer is included as addressee in just this protection area of the sales investigation, which means that the horse buyer becomes the directly entitled person with regard to the protective duties resulting from the sales investigation commissioned by the horse seller. This corresponds to claims of the buyer, which he can assert against the veterinarian in case of breach of contract. Thus, in the area of the sales investigation this is clearly to be affirmed in the aforementioned sense, namely that the purchaser of a defective horse may make independent claims against the veterinarian not acting directly on his behalf. Such liability exists irrespective of whether the buyer, in addition to the seller, was the principal of the investigation. So the veterinarian is fully liable to the buyer, as he lacking a direct contract, could not agree with the buyer on limitations of liability. In particular, in the case of bankruptcy of the seller, the buyer has a second debtor. Through a purchase investigation, the seller should be informed comprehensively and conclusively about the condition of the horse and the condition of the horse in order to determine his own starting position and thus his possible liability in the case of sale. On the other hand, the buyer should be given a secure basis for his purchase decision. The duty of care of the veterinarian requires to disclose all adverse results that deviate from ideal to both parties. In addition, a thorough explanation of the significance of these findings is required, which must not be a template. The parties expect such an investigation to protect the buyer from damage and the seller from appropriate claims.
In a decision from 2001, the local court of Arensburg (judgment of 02.02.2001, 44 C 673/98) made it clear for the first time that the agreed scope of the purchase investigation is also decisive for limiting the liability of the veterinarian. A purchase investigation regularly only includes an average general examination. The purpose of an average general examination is not to undertake a detailed examination of remote parts of the body, as this is to be understood as a special examination of an organ system, which is carried out only if expressly commissioned and if there are indications of further investigation.