California Health and Safety Codes 122125-122220

I signed a seller supplied purchase agreement when I bought a Maltese puppy. Listed in the terms it states that the kennel "cannot guarantee the size, color, weight of a dog, nor do we guarantee the ears to stand, loose knees, or double set of teeth". We have had many minor health problems with this dog. Now, nine months later we find that the dog has Luxating Patella and leg problems (knee grooves and legs which are faulty and cause problems such as knees popping out, leg locking, much pain in the later future), and an 's' shaped leg (rather than straight). Two animal orthopedic surgeons have confirmed that this problem is congenital and hereditary. The estimate from one othopedic suregeon is that one knee requires surgery ($1,300 +) within six months to alleviate pain and more damage to the other leg. Another surgeon estimates $4,300 to fix the leg and knee.
Do I have any rightful claim against the breeder even if I signed the purchase agreement?

Leaving out everyone's names, please write the exact wording of the ENTIRE contract for review. Also, please tell us the name of the State where everyone to this contract is located, and what State the contract was signed.

All parties reside and all transactions occurred in California.
Here is the agreement in its entirety leaving out names and addresses. Grammatical errors are as they are on the agreement writing.

___ Kennel ___

o To validate of this guarantee requires examination of our pup by a veterinarian at the buyer’s expense within 48 hours from the purchase, otherwise this guarantee is void. If a medical problem exists, please notify us and bring the pup to the ___ Kennel ___.
o ___ Kennel __ guarantees the puppy until 1 year of age against life threatening hereditary conditions. If a condition does occur a replacement will be given upon return the puppy. If you decide not to return the puppy, all vet bills will be the responsibility of the buyer. (WE DO NOT REFUND CASH).
o ___ Kennel ___ DO NOT guarantee against hypoglycemia. We have informed the buyer of the signs of hypoglycemia and instructed the buyer to call a licensed veterinarian for immediate care.
o ___ Kennel ___ has done everything possible to produce healthy puppies by raising in the best way. The puppy must be given follow-up shots and wormed regularly. We feed Eukanuba food and the buyer has to keep feeding same food until puppy gets a year. We DO NOT guarantee against diarrhea due to stress of improper diet and change of food.
o ___ Kennel ___ cannot guarantee the size, color, weight of a dog, nor do we guarantee the ears to stand, loose knees, or double set of teeth. We also do not accept returns for hernia because they are not life threatening.
o The seller agrees to provide AKC and CKC paperwork to the buyer so that the buyer may register said puppy.
o Make sure you can accept the responsibility of this puppy as deposits are no-refundable unless I feel the pup you picked did not turn out as expected. Full payment including al other expense must be received by the time the pup is 9weeks of age or the deposit will be forfeited and the pup resold.
o After 48 hours all sales are final.

I have read and understand these warrantees and conditions, all of which I accept by signing this contract.
__________________________________________________ ______________
Friends have told us that you can put anything in a contract you want, but the actual law will overrule. Is this a correct statement to apply (with California Health and Safety Codes 122125-122220) and void the contract terms?

Thank you. Now, what is the date of the contract?

What parts of the contract were not complied with by you?

What parts of the contract were complied with by you?

What part of the contract do you claim covers your financial issue?

If you complied with item one of the contract, beginning with "To validate of this guarantee," what did the vet say about the dog's physical issues at that time?

Has a vet informed you that the dog's condition is hereditary?

Which part of California Health and Safety Codes 122125-122220 are you relying upon?

Is the breeder "any person, firm, partnership, corporation, or other association, that breeds or rears dogs on the premises of the person, firm, partnership, corporation, or other association, that has sold, transferred, or given away fewer than 50 dogs in the preceding year"?

There may be more questions.

Thank you. Now, what is the date of the contract?
12/16/05

What parts of the contract were not complied with by you?
None, all were complied (vet check up, shots, wormed, and above and beyond...), but -
the Second section of the contract is where we do not want to comply - o ___ Kennel __ guarantees the puppy until 1 year of age against life threatening hereditary conditions. If a condition does occur a replacement will be given upon return the puppy. If you decide not to return the puppy, all vet bills will be the responsibility of the buyer. (WE DO NOT REFUND CASH).

We do not want to return the puppy. As per California H&S Code Section 122190 point three - "Keep the dog...and breeder pays "reimbursement for reasonable veterinary fees for diagnosis and treating the dog in an amount not to exceed 150 percent of the original purchase price of the dog, plus sales tax on the original purchase price of the dog.".

What parts of the contract were complied with by you?
All were complied (vet check up, shots, wormed, and above and beyond..., but -, we want to have the dog fixed as per California H&S Code Section 122190 point three - "Keep the dog..."
What part of the contract do you claim covers your financial issue?
Second section as above, in particular - If you decide not to return the puppy, all vet bills will be the responsibility of the buyer. (WE DO NOT REFUND CASH).

Can they overwrite California laws and codes?

If you complied with item one of the contract, beginning with "To validate of this guarantee," what did the vet say about the dog's physical issues at that time?
At the time the Vet said the dog was healthy, but she had to be treated for worms and was said to be too young to be separated away from the mother. No xrays were performed as they are not a standardly checked item.

Has a vet informed you that the dog's condition is hereditary?
YES and probably from a lot of inbreeding.

Which part of California Health and Safety Codes 122125-122220 are you relying upon?
All apply, but in specific 122160 to have the breeder pay for the hereditary problems.

Is the breeder "any person, firm, partnership, corporation, or other association, that breeds or rears dogs on the premises of the person, firm, partnership, corporation, or other association, that has sold, transferred, or given away fewer than 50 dogs in the preceding year"?
No, they sell more than 50 a year.

There may be more questions.
sure - Thanks!

No, the breeder cannot override California law. It's not what the contract says; it's what the law says!

Sue the breeder in Small Claims court.

Thanks for the information!

One last question:

Do you know the specific California Code, legislature, stare decisis, or Statute that states that a written contract or similar cannot overrule Law?

We are going to sue, but I would like to put this question finally to rest.

You're "overworking" this. Don't worry, the judge automatically knows, like all of us do, that the laws take precedence - - not the contract. Assume that the judge is not an idiot.

"If the court finds as a matter of law the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result." [Ca Civil § 1670.5(a); see Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 655, 9 Cal.Rptr.3d 422, 435]

Besides, the contract, itself, is vague, ambiguous and unintelligible. It's rather doubtful that the judge will be able to make heads or tails from it in terms of the rights and responsibilities of the parties. The judge just might throw the contract out on those conditions.

Additionally, the breeder knew, or should and could have known, that "inbreeding" causes these types of hereditary results, and thus, is liable to you for selling a "defective product" under the ambit of the Uniform Commercial Code.

All you need to do is sue the breeder on a Breach of Contract theory, and bring in all of your documentary evidence.

You are going to have to prove HSC 122140 (b)(6)(f) which states,
"For purposes of this article, a disease, illness, or
congenital or hereditary condition that adversely affects the health
of a dog at the time of sale or is likely to adversely affect the
health of the dog in the future shall be one that is apparent at the
time of sale or that should have been known by the pet dealer from
the history of veterinary treatment disclosed pursuant to this
section."

Second you have 3 options if within one year you discover something that court would have to acknowledge is a hereditary/congenital condition.

HSC 122160 (a)(1-3)

(1) Return the dog to the pet dealer for a refund of the purchase
price, plus sales tax, and reimbursement for reasonable veterinary
fees for diagnosis and treating the dog in an amount not to exceed
the original purchase price of the dog, plus sales tax.
(2) Exchange the dog for a dog of the purchaser's choice of
equivalent value, providing a replacement dog is available, and
reimbursement for reasonable veterinary fees for diagnosis and
treating the dog in an amount not to exceed the original purchase
price of the dog, plus sales tax.
(3) Retain the dog, and reimbursement for reasonable veterinary
fees for diagnosis and treating the dog in an amount not to exceed
150 percent of the original purchase price of the dog, plus sales tax
on the original purchase price of the dog.

You have already stated that you do not want to return the dog so options 2 and 3 are out. So you would be entitled to #3. Depending on how much you paid for the dog you cannot recover more than 150% of the original purchase price.

Good Luck.