Sense and nonsense of protection contracts in animal protection
With the switching of rabbits in animal protection circles, usually a protection contract is drawn up, which (as the name says already), the animal from damage and suffering to protect and a life in species-appropriate attitude after the conceptions of the mediator to make sure is.
The often by laymen provided contracts, were examined in the rarest cases by a lawyer and offend also often against valid laws.
Protection contracts usually regulate the keeping conditions, furthermore the recipient of the animal agrees to pre- and post-controls and agrees not to give the animal on, to castrate it (if it has not yet been castrated), not to reproduce it or use it for breeding purposes and to report the new place of residence in case of a change of residence.
Forms from the Internet are invalid – only individual contracts can be effective.
Protection contracts are often already available as forms at various clubs and on Internet sites for download and only need to be filled out. In a judgment such forms were classified as General Terms and Conditions. A protection contract made available on the Internet is pre-formulated and would be used for a large number of contracts, therefore it fulfils the characteristics of general terms and conditions even if individual sections had to be supplemented and completed. GTC are ineffective because they unreasonably disadvantage the opposing contracting party. Also the good intention of the saleswoman to take influence in the sense of the animal protection on the further life of the animal does not change anything at it.
“The “protection contract” provides general trading conditions. General terms and conditions are all pre-formulated contractual terms and conditions for a large number of contracts which one party to the contract represents to the other party when concluding a contract. This is to be assumed in the present case. It is undisputed that the plaintiff procured the then handwritten contract text from the Internet. This alone shows that the text was not only intended for one case of use. In contrast, the fact that the plaintiff used the case in question for the first time is irrelevant. It is precisely not important that the user himself has drawn up the contractual terms for an indefinite number of contracts. In so far as the plaintiff, in stating its grounds of appeal, argues that it had individually agreed the contract with its then contractual partner S…, this does not preclude the acceptance of general terms and conditions. General terms and conditions do not exist insofar as the contractual conditions have been individually negotiated between the contracting parties.
Meanwhile, the plaintiff’s submission regarding an individual agreement is insubstantial. The plaintiff does not state in more detail what should have been individually agreed from the contract text and which parts were taken from the Internet. There is also no lecture on the content of concrete contract negotiations with regard to individual components of the contract. Ultimately, the assertion of an individual agreement contradicts the argument maintained with the grounds of appeal that a text taken from the Internet had been used.
Protection contracts unfairly discriminate against the purchaser
In most cases, protection contracts are not sales contracts, as they discriminate against the purchaser unreasonably. Thus the seller’s warranty obligation, which is binding in purchase contracts, usually lapses in protection contracts (e.g. if an illness already present at the time of the sale is diagnosed afterwards, because then the seller would have a warranty obligation in the context of a purchase contract, which animal protection can usually hardly meet financially). Therefore they discriminate inappropriately against the buyer of the animal, which lets them offend against the BGB §307. Protection contracts usually place many demands on the new keeper without providing him with securities and guarantees in return.
(1) Provisions in General Terms and Conditions shall be ineffective if they unreasonably disadvantage the contractual partner of the User contrary to the requirements of good faith. An inappropriate disadvantage may also result from the fact that the provision is not clear and understandable.
(2) In case of doubt, an unreasonable disadvantage shall be presumed if a provision is
- cannot be reconciled with the fundamental ideas of the statutory regulation from which the deviation is made, or
- restricts essential rights or obligations resulting from the nature of the contract to such an extent that the achievement of the purpose of the contract is endangered.
Only appropriate contractual penalties protect
In order to ensure compliance with the agreements, a contractual penalty must always be agreed in a contract. However, this penalty is only valid if it is proportionate to the value of the animal. The contractual penalty has its limits where immorality begins.
In the case of rabbits, the problem arises that they generally have a very low market value, so the contractual penalty can only be set very low, which means that violations can only be punished with very low amounts. This can be avoided if the sum is to be paid to an animal welfare association and does not end up in the pocket of the intermediary. Then the contractual penalty can also be set somewhat higher.
The animal protection law protects
- In the event of infringements, a complaint can be lodged
Irrespective of protection contracts, a complaint can be filed at any time if there is a violation of the Animal Welfare Act. Unfortunately, the Animal Welfare Act is often not sufficiently used and taken seriously. It is relatively general and makes no concrete demands on rabbit keeping. Animal protection associations demand from time to time clearly stricter attitude regulations than authorities, laws and courts. Many veterinary offices orient themselves however at the defaults of the TVT (veterinary association for animal protection), which publishes concrete (but nevertheless still partially incomplete and insufficient) attitude regulations in info. sheets.
The proof of resulting damages is not simple
In many cases, it is necessary to demonstrate to the purchaser that his inadequate housing conditions have caused or may cause damage and suffering to the animal. Unfortunately, this is very difficult in practice.
The ignorance of the buyer protects the animal?
Many associations are aware of the ineffectiveness of their contracts, but use them consciously anyway, as they should deter the new acquirer. Many keepers also assume that the passages are effective and therefore adhere strictly to the contracts.
Unnounced and announced controls/post-controls – confiscation/capture of the animals
In almost all contracts, the owner undertakes to tolerate follow-up inspections and to return the animal to the club/agent in the event of an infringement. In practice, no animal welfare association can gain access to the property on the basis of these passages or simply take the animal with them. Such passages fulfill the facts of the house peace break. Besides an animal should never be handed over without consultation with a lawyer to an association. Only a seizure over the authorities is possible and this also only then, if a offence against the TschG or a damage/suffering, which developed by wrong attitude conditions, is provable. Only if danger is in delay (seriously ill, dying, severely injured animals) the animal can be released.
However, there is no objection to registered follow-up inspections, which serve the protection of the mediated animals and are carried out with respect to the new keeper and without violations of the law, but any keeper interested in the welfare of his rabbit will gladly agree to such follow-up inspections and on request make an appointment for a visit.
Contact details and return agreement if the animal is to be handed in
With a proper switching of an animal protection animal it is meaningful that the association offers to be available with further inquiries at each time and with advice and act to the side. Besides it is meaningful to make possible the return of the animal for the Erwerber at each time. Thus it can be often prevented that the animal is delivered in emergency situations to the next best place or given to another animal protection association. A duty to give the animal in principle to the association or only after consultation with the association, does not exist by the way, provided that the new owner is really the owner. If it concerns a reasonable association, it is mostly the best variant to look for a good place and to communicate to the association then these and to leave the switching intentions to bless (this is not however compellingly necessary!). Each better association will have nothing against it with a good follow-up place.
Avoid ineffectiveness: more say for the new owner through a maintenance contract instead of a protection contract
The situation is different if the animal is not handed over to the new owner, but only entrusted for care. Then the intermediary/association remains the owner and only gives the new owner the right to care for his animal. A reasonable solution, which some associations already use, is a temporary care contract (e.g. limited to half a year or one year), which changes after expiration of this period into a protection contract. Thus the association has the possibility to influence the keeping conditions for a certain period of time and can sue for the return of the animal in case of violation. On the other hand, the new keeper can enter into this contract, as the animal passes into his possession at least after the expiry of this period and he does not have to fear the return of the animal to the association all the time. Pure care contracts, in which the club/agent remains the owner for the entire lifetime of the animal and the new owner only cares for the animal, should not be signed.
Serious associations often determine a temporary care contract (e.g. 1/2 year) and offer in this time a free veterinary check, stand with advice and act to the side and make sure with announced follow-up controls (1-2 controls) that their animal is well. If the owner passes this “trial period”, the animal automatically becomes his property.
With care contracts the owner (animal protection association/intermediary) remains however also liable to pay, e.g. if veterinary surgeon costs develop. A temporary care contract with subsequent change of ownership is therefore a sensible solution for both sides, which takes sufficient account of the protection of the animal and the rights of the new owner.