1 See Dennis Tilton, Fraud in the Sale of a Show Horse, 39 Am. Jur. Trials 527, 541 (1989).
2 Id.
3 See id. at 540.
4 Id. at 541.
5 See id.
6 The author created this fictitious hypothetical.
7 See Tilton, supra note 1, at 541.
8 See id.
9 See id.
10 Julie I. Fershtman, Equine Law & Horse Sense 41 (1996).
11 See id.
12 See John Alan Cohan, The Uniform Commercial Code as Applied to Implied Warranties of “Merchantability” and “Fitness” in the Sale of Horses, 73 Ky. L.J. 665, 681 (1984); Robert S. Miller, The Sale of Horses and Horse Interests: A Transactional Approach, 78 Ky. L.J. 517, 576 (1989/1990).
13 See Miller, supra note 12, at 521–23; see also Fershtman, supra note 10, at 45 (stating that aggrieved horse purchasers can sue sellers for common-law claims such as breach of contract or fraud). Horse purchasers can also pursue claims under other federal and state statutes, such as the Magnuson-Moss Warranty Act, which regulates warranties and remedies. 15 U.S.C. �� 2301–2312 (2000); Miller, supra note 12, at 551.
14 See, e.g., Fershtman, supra note 10, at 45 (discussing the potential application of CPAs in such transactions).
15 See id.; see also John J. Kropp et al., Horse Sense and the UCC: The Purchase of Racehorses, 1 Marq. Sports L.J. 171, 199 (1991) (stating that the possible applicability of state consumer protection statutes should not be overlooked, but because such statutes vary from state to state, it is difficult to determine how they generally impact the equine industry); Miller, supra note 12, at 551 (noting that legislative declarations of policies, such as consumer protection acts, have potential importance to equine sales transactions).
16 See Miller, supra note 12, at 533 n.117.
17 See Jonathan Sheldon & Carolyn L. Carter, Unfair and Deceptive Acts and Practices 31 (3d ed. 1991).
18 See id.
19 See infra notes 24–261 and accompanying text.
20 See infra notes 24–129 and accompanying text.
21 See infra notes 130–261 and accompanying text.
22 See infra notes 262–329 and accompanying text.
23 See infra note 330 and accompanying text.
24 U.C.C. � 1–102(2) (2000); see Jonathan Sheldon & Carolyn L. Carter, Consumer Warranty Law 52 (1997).
25 See U.C.C. � 2 (2000); Cohan, supra note 12, at 666–67. Every state except Louisiana has adopted Article 2 of the U.C.C. Cohan, supra note 12, at 665.
26 Kropp, supra note 15, at 174. For example, Vermont’s U.C.C. defines “goods” as “all things . . . which are movable at the time of identification to the contract for sale. . . . ‘Goods’ also includes the unborn young of animals . . . .” Vt. Stat. Ann. tit. 9A, � 2–105 (1994).
27 See Kropp, supra note 15, at 176.
28 See U.C.C. � 2–201(1); Kropp, supra note 15, at 176.
29 U.C.C. � 2–201(1); Kropp, supra note 15, at 176; see, e.g., McClure v. Duggan, 674 F. Supp. 211, 218–19 (N.D. Tex. 1987) (concluding that a breach of contract cause of action was unsupportable because the plaintiff, who sued the defendant for failure to sell the plaintiff a racehorse for $600,000, failed to establish that a signed, written memorandum existed; thus, any contract that may have existed was unenforceable because it failed to comply with the Statute of Frauds).
30 U.C.C. � 2–201(2); Kropp, supra note 15, at 176.
31 Kropp, supra note 15, at 176–77 n.31. For example, a court would consider someone who professionally sells Appaloosa western trail horses a merchant of that type of horse but not a merchant of Thoroughbred racehorses, unless he or she also has knowledge particular to the Thoroughbred industry. Cohan, supra note 12, at 670.
32 See Cohan, supra note 12, at 669. Courts likely would not consider an inexperienced or casual seller of a horse a merchant for the purposes of the implied warranty of merchantability, while a person who buys and sells horses for profit is a merchant for these purposes, whether or not this is his or her first sale. Id. at 669–70.
33 Id. at 671.
34 See U.C.C. � 2–201(3); Kropp, supra note 15, at 177.
35 See U.C.C. � 2–201(3)(c); Kropp, supra note 15, at 177.
36 See U.C.C. � 2–201(3)(c); Kropp, supra note 15, at 177.
37 Kropp, supra note 15, at 177.
38 See Miller, supra note 12, at 537.
39 See Kropp, supra note 15, at 179.
40 See U.C.C. � 2–202; Kropp, supra note 15, at 180.
41 U.C.C. � 2–202; Kropp, supra note 15, at 180–81.
42 See U.C.C. � 2–202(a).
43 See id.; Kropp, supra note 15, at 182–83.
44 See Kropp, supra note 15, at 177.
45 Miller, supra note 12, at 538.
46 Id.
47 See Kropp, supra note 15, at 177–78.
48 Id. at 178.
49 Id.
50 Id.
51 Id. at 179–80.
52 See Kropp, supra note 15, at 184.
53 See id.
54 See infra notes 55–129 and accompanying text.
55 See U.C.C. �� 2–601(a), 2–608 (2000); Kropp, supra note 15, at 196.
56 See U.C.C. �� 2–601(a), 2–608; Kropp, supra note 15, at 196.
57 See U.C.C. � 2–711; Kropp, supra note 15, at 196.
58 See U.C.C. � 2–714; Kropp, supra note 15, at 196.
59 Miller, supra note 12, at 547.
60 See Kropp, supra note 15, at 196–97.
61 U.C.C. �� 2–601, 2–602; Kropp, supra note 15, at 196.
62 U.C.C. � 2–608(2); Kropp, supra note 15, at 196.
63 See Miron v. Yonkers Raceway, Inc., 400 F.2d 112, 118–19 (2d Cir. 1968) (concluding that the purchaser could not revoke acceptance one day following the purchase of the horse). But see Alpert v. Thomas, 643 F. Supp. 1406, 1409, 1412 (D. Vt. 1986) (concluding that the purchaser’s revocation of the contract more than one year after the horse purchase was within a reasonable time because the seller had repeatedly assured the purchaser to follow the doctor’s “wait-and-see” advice).
64 Kropp, supra note 15, at 197–98; see U.C.C. � 2–714.
65 Kropp, supra note 15, at 198; see U.C.C. � 2–714.
66 Cohan, supra note 12, at 682. Also to prevent old claims, the statute of limitations imposed by the U.C.C. requires that a party commence a breach of warranty claim within four years after accrual of the cause of action. U.C.C. � 2–725(1).
67 See U.C.C. � 2–313; Cohan, supra note 12, at 688.
68 See Miller, supra note 12, at 594.
69 643 F. Supp. at 1414–15.
70 Id. at 1412, 1420.
71 Kropp, supra note 15, at 184–85.
72 See id. at 185.
73 See id.
74 In the equine industry, a horse with no physical problems related to its performance ability is referred to as “sound,” while a horse with problems is “unsound.” See Cohan, supra note 12, at 675.
75 See 427 F. Supp. 760, 765 (E.D. Pa. 1977).
76 See 350 F.2d 46, 49 (10th Cir. 1965).
77 See, e.g., Frederickson v. Hackney, 198 N.W. 806, 807 (Minn. 1924) (concluding that it was impossible to create an implied warranty regarding an immature bull’s future breeding capacity because such a characteristic was impossible to predict).
78 See Kropp, supra note 15, at 184.
79 See 759 P.2d 418, 422 (Wash. 1988).
80 Id. at 419.
81 See id. at 422. The defendant argued that the express warranty had been disclaimed by the Conditions of Sale of the auction, but the court determined that it would be unreasonable to allow a disclaimer for the express warranty in this case. See id.
82 See U.C.C. �� 2–312(1), 2–314, 2–315 (2000); Kropp, supra note 15, at 186–87. Implied warranties are not always available to dissatisfied horse purchasers, as many states limit their scope in livestock sales. Cohan, supra note 12, at 686; Kropp, supra note 15, at 192. These states are: Arkansas, California, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, and Texas. See Cohan, supra note 12, at 686 n.131; Kropp, supra note 15, at 192 nn.123–24.
83 See U.C.C. � 2–312(1); Kropp, supra note 15, at 186.
84 Kropp, supra note 15, at 186.
85 See Miller, supra note 12, at 524.
86 See U.C.C. � 2–314; Kropp, supra note 15, at 186–88.
87 Cohan, supra note 12, at 673; see U.C.C. � 2–314. When the seller knows that the purchaser wants to use the horse for breeding, courts will find an implied warranty of merchantability that a stallion has the capability of impregnating a mare or that a mare has the capability of giving birth to a live foal. Cohan, supra note 12, at 677.
88 See Cohan, supra note 12, at 673. Such physical problems include, but are not limited to: “blindness, deafness, one leg being shorter than another, lameness, and infection with a contagious disease.” Id. at 675. If the horse can be restored to its usual and reasonable use, then a court will not consider it unmerchantable, even if it ultimately cannot meet the purchaser’s expectations. Id. at 676.
89 See id. at 673.
90 Id. at 667. See supra notes 31–33 and accompanying text for a discussion of the term “merchant.” For example, in Alpert v. Thomas, the United States District Court for the District of Vermont concluded that the sellers were merchants for purposes of the implied warranty of merchantability because they held themselves out “as having knowledge and skills peculiar to the practices and goods involved in the Arabian horse business.” 643 F. Supp. at 1415–16.
91 Cohan, supra note 12, at 683–84.
92 Id. at 676.
93 Id. at 678; see U.C.C. � 2–315.
94 Cohan, supra note 12, at 678–79; see U.C.C. � 2–315. For example, a Thoroughbred used for racing is an ordinary purpose, but a Thoroughbred used for western-style trail riding is a particular purpose. See Cohan, supra note 12, at 679.
95 Cohan, supra note 12, at 679.
96 Id.
97 Id. at 680; see, e.g., Woodruff v. Clark County Farm Bureau Co-op. Ass’n, 286 N.E.2d 188, 190, 195 (Ind. Ct. App. 1972) (concluding that a material issue of fact existed as to the possible violations of the implied warranty of fitness for a particular purpose when the purchaser relied on the seller’s statements of the chickens’ good health, despite the purchaser’s observations on two occasions that the chickens he intended to purchase were underfed and looked unhealthy).
98 See, e.g., Sessa, 427 F. Supp. at 766, 770 (concluding that the purchaser’s reliance on his agent overrode any reasonable reliance on the seller, who knew the purchaser intended to use the horse for racing and told the purchaser that the horse was sound when in fact he was not).
99 Cohan, supra note 12, at 681.
100 See id.
101 759 P.2d at 422; see also Cohen v. North Ridge Farms, Inc., 712 F. Supp. 1265, 1269 (E.D. Ky. 1989) (declining to allow the plaintiff’s request for rescission because the Conditions of Sale in the auction catalog “put plaintiff on notice that (1) this yearling was sold with no warranty, express or implied, and (2) there was no guarantee as to the ‘soundness, condition, wind or other quality’ of the yearling, and (3) the yearling was being sold ‘as-is’ . . . .”).
102 See Kropp, supra note 15, at 194.
103 Id.; see U.C.C. � 2–316(3)(b) (2000).
104 See Cohan, supra note 12, at 685.
105 712 F. Supp. at 1274.
106 Cohan, supra note 12, at 685; see U.C.C. � 2–316(3)(b); see, e.g., Calloway v. Manion, 572 F.2d 1033, 1035 & n.2 (5th Cir. 1978) (finding that the purchaser refused the seller’s demand that he inspect the horse prior to the sale and, consequently, that refusal was sufficient to bar recovery for any defect that an examination would have revealed—in this case, the presence of an imperfectly formed ovary).
107 Cohan, supra note 12, at 685.
108 Id. at 686. A hypothetical example of this active concealment is if, prior to the examination, the seller injects a chronically lame horse with a drug to lessen the visual signs of unsoundness, thereby deceiving the purchaser.
109 See U.C.C. � 2–719(1)(a).
110 See Calloway, 572 F.2d at 1035, 1038.
111 See id.
112 A gelding is a male horse that has been castrated.
113 See 572 F.2d at 1035, 1037.
114 See id. at 1035, 1038.
115 See Miller, supra note 12, at 531.
116 See id. at 529–30.
117 See id. at 530.
118 See id. at 530–31.
119 See U.C.C. � 2–714 (2000); Kropp, supra note 15, at 197–99.
120 U.C.C. � 2–714(2); Kropp, supra note 15, at 198. Compare Cronin v. Bacon, 837 S.W.2d 265, 269–70 (Tex. Ct. App. 1992) (calculating breach of warranty damages based on the difference in value between a prospective foal sired by the stallion to whom the purchaser believed his mare was being bred and the value of a prospective foal sired by the stallion to whom the purchaser’s mare actually was bred), with Yost v. Millhouse, 373 N.W.2d 826, 830–31 (Minn. Ct. App. 1985) (calculating breach of warranty damages based on minority “out-of-pocket” rule, which measures damages by the difference between what the defrauded person paid and what she received; in this case, because the purchaser eventually sold the horse for fifty dollars less than what she initially paid, the court awarded her only fifty dollars).
121 Kropp, supra note 15, at 198; see also Alpert, 643 F. Supp. at 1420 (awarding plaintiff $25,000 in consequential damages for expenses reasonably incurred in transportation, care, custody, and insurance of the horse).
122 Sheldon & Carter, supra note 24, at 382; see U.C.C. �� 2–701–725.
123 U.C.C. � 1–102(2).
124 See id.
125 See id.; Fershtman, supra note 10, at 41.
126 See U.C.C. � 1–102(2); Sheldon & Carter, supra note 24, at 384.
127 See Sheldon & Carter, supra note 17, at 31.
128 See infra notes 267–313 and accompanying text for a discussion of how CPAs provide better remedies for unsophisticated horse purchasers than the U.C.C.
129 See infra notes 303–313 and accompanying text for a discussion of when CPAs protect purchasers and the U.C.C. does not.
130 Sheldon & Carter, supra note 17, at 31.
131 Id. at 31; see 15 U.S.C. � 45(a)(1) (2000).
132 Sheldon & Carter, supra note 17, at 31; see 15 U.S.C. � 45(a)(1).
133 Sheldon & Carter, supra note 17, at 31; see, e.g., Fancher v. Benson, 580 A.2d 51, 53 (Vt. 1990) (“The purpose of the Vermont Consumer Fraud Act is to protect the public and is remedial in nature.”).
134 Sheldon & Carter, supra note 17, at 31.
135 Id. at 391. Sellers are also protected by a relatively short statute of limitations period of one or two years, which runs from the time the purchaser knows or should know of the violation. Sheldon & Carter, supra note 24, at 385.
136 See Sheldon & Carter, supra note 17, at 31. For example, Washington’s CPA simply provides: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Wash. Rev. Code � 19.86.020 (1999).
137 See Sheldon & Carter, supra note 24, at 384.
138 See Sheldon & Carter, supra note 17, at 124.
139 674 F. Supp. 211, 224 (N.D. Tex. 1987).
140 Id. at 214.
141 Id. at 215.
142 Id. at 213–14; see Tex. Bus. & Com. Code Ann. � 17 (Vernon 2002).
143 McClure, 674 F. Supp. at 219.
144 Id. at 224.
145 Id.
146 See id.; see also infra notes 160–242 and accompanying text for a discussion of these violations.
147 Sheldon & Carter, supra note 17, at 34.
148 See id. For example, in 1981, in Musil v. Hendrich, the Kansas Court of Appeals considered the level of sophistication of the parties involved to determine whether there was a CPA violation. See 627 P.2d 367, 371 (Kan. Ct. App. 1981). The court concluded that both parties were experienced in the pig farming industry; therefore, the purchaser was on equal bargaining ground with the seller, and the plaintiff could not establish a deceptive practice or unconscionable act under the Kansas Consumer Protection Act. See id.
149 See infra notes 184–201 and accompanying text.
150 See infra notes 202–212 and accompanying text.
151 Sheldon & Carter, supra note 17, at 37.
152 See id.
153 Id. at 39. The New Mexico Unfair Practices Act, for example, requires that the deceptive practice occur in the defendant’s regular course of trade or commerce; therefore, the Act does not apply to isolated occurrences. In re Klein, 39 B.R. 20, 22 (Bankr. D. N.M. 1984).
154 Sheldon & Carter, supra note 17, at 39.
155 Id.
156 Id.
157 See Tex. Bus. & Com. Code Ann. � 17.45(1) (Vernon 2002); Scholtz v. Sigel, 601 S.W.2d 516, 519 (Tex. App. 1980).
158 See Vt. Stat. Ann. tit. 9 � 2451(b) (1985); Fancher, 580 A.2d at 53.
159 See Ky. Rev. Stat. Ann. � 367.220 (Michie 2002); Cohen v. North Ridge Farms, Inc., 712 F. Supp. 1265, 1272 (E.D. Ky. 1989). It is possible a court in Kentucky could limit the holding in Cohen to apply only to Thoroughbred horses, thereby finding a violation of the state CPA for an equine sales transaction involving a horse other than a Thoroughbred; however, the court’s failure to explain why a Thoroughbred horse in particular was not a consumer good indicates that courts in Kentucky would be unsympathetic toward purchasers of any horse breed. See 712 F. Supp. at 1272. Moreover, after Cohen, there appear to be no other cases involving a CPA claim for an equine sales transaction, indicating that such a claim likely would prove unsuccessful. See id.
160 See Sheldon & Carter, supra note 17, at 83.
161 Id.
162 Id.
163 See id. at 88.
164 See id. at 91.
165 See 674 F. Supp. at 223.
166 Sheldon & Carter, supra note 17, at 91.
167 See id.; see, e.g., Scholtz, 601 S.W.2d at 519 (upholding the trial court’s finding of deceptive practices, and therefore a CPA violation, based on the defendants’ misrepresentations that the horse was good for show purposes and the plaintiff’s reliance on the defendants’ judgment).
168 See Sheldon & Carter, supra note 17, at 94.
169 See infra notes 170–261 and accompanying text for a discussion of these standards and remedies.
170 See, e.g., Travis v. Washington Horse Breeders Ass’n, 759 P.2d 418, 423 (Wash. 1988) (finding a CPA violation because the seller’s advertisements and statements were likely to mislead other purchasers).
171 See 673 S.W.2d 295, 298 (Tex. App. 1984).
172 See id. at 297.
173 See id. at 298–99.
174 See Back Bay Farm, LLC v. Collucio, 230 F. Supp. 2d 176, 181 (D. Mass. 2002).
175 See id. In Back Bay, the court considered the defendant’s motion to dismiss for failure to state a claim, lack of venue, and lack of personal jurisdiction. Id. at 179. Thus, the court upheld the plaintiff’s claim only to the extent that she adequately pled a violation of the Massachusetts CPA, chapter 93A, to withstand a motion to dismiss. See id.
176 See id.
177 See id. at 179, 181.
178 Sheldon & Carter, supra note 17, at 93.
179 Id. at 93–94.
180 Id. at 94.
181 Id.
182 See Minn. Stat. � 325F.69 (1995); Yost v. Millhouse, 373 N.W.2d 826, 831 (Minn. Ct. App. 1985).
183 Sheldon & Carter, supra note 17, at 112.
184 See id. at 109.
185 See, e.g., Travis, 759 P.2d at 423 (“To establish that there was an unfair or deceptive act, [a] plaintiff need not show that the act in question was intended to deceive, but that the alleged act had the capacity to deceive a substantial portion of the public.” (citing Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531 (Wash. 1986)).
186 See supra note 178 and accompanying text.
187 See Sheldon & Carter, supra note 17, at 113.
188 See Hangman, 719 P.2d at 535 (“The purpose of the capacity-to-deceive test is to deter deceptive conduct before injury occurs.”).
189 See Sheldon & Carter, supra note 17, at 110. Examples of such states include Delaware, Illinois, and Oregon. Id. nn.25–26.
190 See id.
191 See 837 S.W.2d 265, 268 (Tex. App. 1992).
192 See Sheldon & Carter, supra note 17, at 110.
193 See 373 N.W.2d at 830.
194 See id. at 828, 829, 830.
195 See id. at 829–30.
196 See id. at 829, 830; Sheldon & Carter, supra note 17, at 111.
197 Sheldon & Carter, supra note 17, at 116–17.
198 See id.
199 601 S.W.2d at 518.
200 Id. at 518, 519.
201 See id. at 519.
202 See Sheldon & Carter, supra note 17, at 118.
203 See id.
204 580 A.2d at 54–55. Interestingly, the jury returned verdicts in favor of the defendant on the breach of express and implied warranty claims. See id. at 54 n.2.
205 Sheldon & Carter, supra note 17, at 122–23.
206 See 759 P.2d at 423.
207 See id.
208 Sheldon & Carter, supra note 17, at 123.
209 See 712 F. Supp. at 1272.
210 See No. 00-P-868, 2002 WL 1924835, at *1 (Mass. App. Ct. Aug. 19, 2002).
211 See id. at *1, 2.
212 See id. at *2.
213 Sheldon & Carter, supra note 17, at 94.
214 Id. at 89.
215 Id. at 94.
216 See, e.g., Cohen, 712 F. Supp. at 1270 (discussing unconscionability issues such as failure of consideration); Travis, 759 P.2d at 423 (discussing public policy concerns).
217 Sheldon & Carter, supra note 17, at 94.
218 See Miller, supra note 12, at 530–31.
219 See id. at 530.
220 See 712 F. Supp. at 1270.
221 See id. at 1270, 1272. The court further stated, “The only way there could be a failure of consideration would be if plaintiff had received (1) nothing, (2) a dead yearling, or (3) a live yearling different from the one on which he bid.” Id. at 1270; see also Schweizer v. Dekalb Swine Breeders, Inc., 954 F. Supp. 1495, 1503 (D. Kan. 1997) (concluding that plaintiffs, who purchased diseased pigs from the defendant, could not receive relief under the Kansas CPA because the plaintiffs did not demonstrate that the defendant enjoyed an unfair advantage over them, the plaintiffs had experience in the hog production business, and neither plaintiff had identified anything in the sales contracts as “confusing, misleading or deceptive;” consequently, the transaction was not unconscionable).
222 See Sheldon & Carter, supra note 17, at 94; infra notes 223–224 and accompanying text.
223 793 S.W.2d 50, 53 (Tex. App. 1990).
224 See id. at 54.
225 See, e.g., Travis, 759 P.2d at 423 (finding a CPA violation because the practice had the capacity to deceive the public).
226 See id.; Perry v. Green, 437 S.E.2d 150, 154 (S.C. Ct. App. 1993).
227 See Sheldon & Carter, supra note 17, at 388.
228 See S.C. Code Ann. � 39–5 (Law. Co-op. 1985); Perry, 437 S.E.2d at 154.
229 See 437 S.E.2d at 154.
230 Id. at 151.
231 Id.
232 Id.
233 Id. at 153–54.
234 See Miller, supra note 12, at 534–35.
235 Id. at 535.
236 See 759 P.2d at 423.
237 See id.
238 See id. Indeed, the lower court’s opinion emphasized that the plaintiff was a relative newcomer to the sport of horse racing. See Travis v. Washington Horse Breeders Ass’n, 734 P.2d 956, 958 (Wash. Ct. App. 1987). The court stated, “it seems incredible that an examination was not uniformly given to horses rated as the best before they were placed in the auction for sale. [The plaintiff] believed the horse was sound and healthy; under these circumstances, any prospective consumer reasonably could have had the same understanding.” Id. at 959.
239 Miller, supra note 12, at 529.
240 See Schweizer, 954 F. Supp. at 1499–1500; Cohen, 712 F. Supp. at 1267–68; Travis, 759 P.2d at 421–22.
241 See, e.g., Travis, 759 P.2d at 422 (“If the factfinder determines that a seller’s statement created an express warranty, words purportedly disclaiming that warranty will have no effect, for the disclaiming language is inherently inconsistent.” (citing White & Summers, Uniform Commercial Code 430 (2d ed. 1980)).
242 See id. at 423.
243 See Sheldon & Carter, supra note 17, at 415–32.
244 See, e.g., Cronin, 837 S.W.2d at 267 (horse purchaser sought damages). Some CPAs, such as those of Ohio and Texas, allow rescission as a remedy. Sheldon & Carter, supra note 17, at 441–42.
245 Sheldon & Carter, supra note 17, at 416.
246 See id.; see, e.g., Yost, 373 N.W.2d at 830–31 (awarding the plaintiff only fifty dollars because she eventually sold the horse for fifty dollars less than what she initially paid).
247 Sheldon & Carter, supra note 17, at 416; see, e.g., Cronin, 837 S.W.2d at 269–70 (awarding damages based on the difference in value between a prospective foal sired by the stallion to whom the purchaser believed his mare was being bred and the value of a prospective foal sired by the stallion to whom the purchaser’s mare actually was bred).
248 Sheldon & Carter, supra note 17, at 418.
249 Id. at 423.
250 See id. at 424.
251 See id. at 428.
252 See id. at 429; see, e.g., Yost, 373 N.W.2d at 832 (concluding that the purchaser was not entitled to punitive damages because the seller did not show a willful indifference to her rights by mistakenly misrepresenting that the horse was not registered).
253 See 580 A.2d at 54–55.
254 See id. at 55.
255 See id. at 54–55.
256 Sheldon & Carter, supra note 17, at 420–21.
257 837 S.W.2d at 268, 269.
258 See id. at 269.
259 Sheldon & Carter, supra note 24, at 383.
260 See 837 S.W.2d at 268.
261 See 759 P.2d at 425.
262 See, e.g., Cohen v. North Ridge Farms, Inc., 712 F. Supp. 1265, 1272 (E.D. Ky. 1989) (the court’s view that Thoroughbred horses are not consumer goods indicates that the court believes that most horse purchasers are not average consumers); Miller, supra note 12, at 533 (“The author suspects that there are very few inexperienced consumers in the horse business.”).
263 See supra note 6 and accompanying text to review the hypothetical.
264 See Tilton, supra note 1, at 541.
265 See id. Experienced and sophisticated horse purchasers arguably do not require protection because they are knowledgeable of the equine industry and therefore more likely to be on equal bargaining ground with the seller. See, e.g., Musil v. Hendrich, 627 P.2d 367, 371 (Kan. Ct. App. 1981) (concluding that because both parties were experienced in the pig farming industry, the purchaser and seller were on equal bargaining ground; therefore, the plaintiff could not establish a deceptive practice or unconscionable act under the Kansas Consumer Protection Act).
266 See supra notes 24–261 and accompanying text for a detailed discussion of the protections the U.C.C. and CPAs provide.
267 See U.C.C. � 1–102 (2000); Sheldon & Carter, supra note 17, at 31.
268 Sheldon & Carter, supra note 17, at 31.
269 See supra notes 123–126, 132–136 and accompanying text for a discussion of U.C.C. and CPA policies and purposes.
270 See Sheldon & Carter, supra note 24, at 52.
271 See, e.g., Cohen, 712 F. Supp. at 1272 (concluding that the contract was valid because the plaintiff was a man experienced in the horse business, who willingly purchased a yearling “as is” with no express or implied warranties).
272 See, e.g., id.; Musil, 627 P.2d at 371 (concluding that the contract was fair because both parties were experienced in the pig farming industry; therefore, the purchaser was on equal bargaining ground with the seller).
273 See Fershtman, supra note 10, at 41.
274 See Sheldon & Carter, supra note 17, at 31.
275 See, e.g., Travis v. Washington Horse Breeders Ass’n, 759 P.2d 418, 423 (Wash. 1988) (finding a CPA violation because the seller’s advertisements and statements were likely to mislead other purchasers).
276 See U.C.C. � 1–102 (2000); Sheldon & Carter, supra note 17, at 31.
277 See, e.g., McClure v. Duggan, 674 F. Supp. 211, 219 (N.D. Tex. 1987) (concluding implicitly that there was no valid U.C.C. claim because no contract existed).
278 See, e.g., Fancher v. Benson, 580 A.2d 51, 54 & n.2, 55 (Vt. 1990) (upholding jury finding that the seller’s intentional delay in disclosing the horse’s heart defect violated the Vermont CPA, but noting that the jury failed to find for the plaintiff on her breach of warranty claims).
279 See id.
280 See Travis, 759 P.2d at 423. When a sophisticated purchaser can demonstrate that a seller’s actions might affect unsophisticated purchasers, a CPA claim works to deter such deceptive practices in the future. See id. Thus, to encourage deterrence, many CPAs also protect sophisticated horse purchasers. See id.
281 See supra notes 243–261 and accompanying text for a discussion of these remedies.
282 See supra notes 119–122, 243–261 and accompanying text for a discussion of damages under the U.C.C. and CPAs.
283 Sheldon & Carter, supra note 24, at 383.
284 See id.
285 See supra notes 123–126 and accompanying text for a discussion of U.C.C. policies.
286 See Sheldon & Carter, supra note 17, at 442.
287 See id. For example, in 1985, in Yost v. Millhouse, the Minnesota Court of Appeals followed this deterrence theory by upholding a CPA-based award of attorney’s fees, stating, “[t]he Consumer Fraud Act is designed to encourage persons to take action to stop the fraudulent activity covered by the act, even though the amount actually lost may be small.” See 373 N.W.2d 826, 832 (Minn. Ct. App. 1985).
288 See Sheldon & Carter, supra note 17, at 442.
289 See id.
290 See supra notes 213–242 and accompanying text for a discussion of unconscionability claims under CPAs.
291 See Miller, supra note 12, at 530–31. For example, in Cohen, the court emphasized that the plaintiff was a man experienced in the horse business, who willingly purchased a yearling “as is” with no express or implied warranties. See 712 F. Supp. at 1272.
292 Sheldon & Carter, supra note 17, at 93.
293 See, e.g., Travis, 759 P.2d at 423 (concluding the practice was deceptive and therefore violated the state CPA because it had the capacity to deceive other horse purchasers).
294 See supra notes 189–191 and accompanying text for a discussion of reliance under CPAs.
295 See Miller, supra note 12, at 530, 587.
296 Cohan, supra note 12, at 679.
297 See Sheldon & Carter, supra note 17, at 116–17.
298 See id.
299 See, e.g., Scholtz v. Sigel, 601 S.W.2d 516, 518, 519 (Tex. App. 1980) (concluding the sellers knew the horse had poor bone structure and was not suitable for showing, and therefore took advantage of the purchaser by misrepresenting that the horse was of a higher quality than it actually was).
300 See supra note 188 and accompanying text.
301 See Sheldon & Carter, supra note 17, at 117; supra note 188 and accompanying text.
302 See Sheldon & Carter, supra note 24, at 384.
303 See id.
304 See supra notes 91–92, 100–114 and accompanying text for a discussion of disclaimers and limitations of remedies under the U.C.C.
305 See supra note 6 and accompanying text.
306 See supra notes 170–212 and accompanying text for a discussion of the standard of deception.
307 See supra notes 137–145 and accompanying text for a discussion of how contract principles do not apply to CPA claims.
308 See supra notes 103–108 and accompanying text for a discussion of the examination exception.
309 See Tilton, supra note 1, at 541.
310 See Sheldon & Carter, supra note 24, at 384; Tilton, supra note 1, at 541.
311 See supra note 6 and accompanying text.
312 See Sheldon & Carter, supra note 24, at 384; Tilton, supra note 1, at 541.
313 Sheldon & Carter, supra note 17, at 34.
314 See id.
315 See Cohen, 712 F. Supp. at 1272.
316 See id.
317 See Miller, supra note 12, at 530–31; Tilton, supra note 1, at 541.
318 See 712 F. Supp. at 1272; Sheldon & Carter, supra note 17, at 31.
319 See 712 F. Supp. at 1272.
320 See id.; supra note 148 and accompanying text.
321 See 712 F. Supp. at 1272.
322 See id.; Sheldon & Carter, supra note 17, at 35.
323 See Sheldon & Carter, supra note 17, at 38; Cohan, supra note 12, at 667.
324 See Sheldon & Carter, supra note 17, at 38; Cohan, supra note 12, at 667.
325 See supra notes 67–81, 93–99 and accompanying text for a discussion of breach of express and implied warranty for a particular purpose claims.
326 See Sheldon & Carter, supra note 17, at 37.
327 See id.
328 See Sheldon & Carter, supra note 24, at 385.
329 See supra notes 262–313 and accompanying text for a discussion of how CPAs provide greater protection.
330 See supra notes 262–313 and accompanying text.