Hi There,
If you have both a contract to purchase and a boarding or agistment section in that contract…or in another separate contract…I would NOT sign up to a contract which required that fully paid for animals NOT be transferred once fully paid.
I would require that before I signed, a separate purchase and separate agistment contract be drawn. I would require that fully paid animals be transferred promptly including ARI certificate. I would further require that the separate agistment contract could require prepayment of a certain number of months' fees which might be held in an interest bearing account from which the current month's agistment could be drawn if not paid on or before a certain date of each month (like the 6th o f the month, for instance)…
That would give seller/agistors some assurance that they would have some pre-paid months if for some reason the account went into arrears. BUT…I would not do business with them if they were going to continue to hold either sales receipts executed as fully paid once that were so; or if they would not promptly transfer ARI certificates upon full payment. To fail to do so is unethical, plain and simple.
IT still sounds like a home brewed contract to me and I would want this one to be attorney drawn for many, many reasons.
Allison
PS.
There are lots of wonderful alpacas all over the USA…you can find as good or a better deal if these folks won't be both flexible and ethical.
From: AlpacaTalk@yahoogroups.com [mailto:AlpacaTalk@yahoogroups.com] On Behalf Of greenfleece60
Sent: Tuesday, June 02, 2009 10:08 AM
To: AlpacaTalk@yahoogroups.com
Subject: [AlpacaTalk] Re: Agistment Contract Question
Allison,
Thanks. I appreciate your comments. The state is NJ. In reading the contract over again, I also have noted that when animals are sold by this farm the title does not transfer until they are delivered. If the animals board, even if they are fully paid off, the farm retains the title and places proceeds from any sales into a trust account from which boarding fees are drawn.
I don't know if it is common for title to be held by the seller in the case of paid off but still boarded animals. It seems like it would be unusual.
Kathy Quinn
Clifton Heights, PA
--- In AlpacaTalk@yahoogroups.com <mailto:AlpacaTalk%40yahoogroups.com> , "Allison Moss-Fritch" <aemoss17@...> wrote:
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> Hi Folks,
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> I don’t like to jump on EVERY legal question just cause I’m a lawyer…but I do think you could use some basics here.
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> When two people contract, they may put in any provision that both of them will agree to so long as it is not a provision to do something which is intrinsically illegal.
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> Now it sounds like your agistor hosts have been stung at one time or another so they have come up with the idea that they should have this provision which gives them with some extra protection against being stuck with someone else’s animals that are eating up a storm and costing them big bucks…and there is no way to put an end to it without hurting the animals!
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> So they have made up this idea of sell one and hold the funds to pay against future costs that may be due or come due on the remaining animals. That is not an illegal idea…but it could be drawn better because it does not provide for several common “what if†type situations that may occur.
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> This is really a problem not for an accountant (who is not trained to write contract language) but for an attorney who is trained in how to draw up contracts…and also in understanding their monetary consequences…e.g. the money or accountant part of the effect of the language.
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> I don’t know what state or states this contract is being created in…but the local law library in your county seat usually has a whole bunch of farm books with “sample†language and checklists for your state to determine what each paragraph does and does not do. These form books are available to the public, if they know how to use them…and it will at least let you see what types of provisions must go with this single paragraph to make it most fair and effective. These books have lists of what goes with each paragraph and what the effects of the language are…These are the books good lawyers use with considerable skill to make a good contract. Without knowing more about WHERE the contract is drawn, I can’t comment more fully on the effects of the language. Using attorney drawn language lets you predict what the effect would be if the language were tested in court. Using home or non-attorney drafted language takes all that predictability away …you cannot know what a court might construe the language as doing or not doing.
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> Having that predictability is very nice. That is part of why attorney drawn contracts are more safe for you as a consumer. Also, if the attorney makes a mistake…they have malpractice insurance. If you sue them over their mistake, that insurance is there to indemnify you for their mistake. With a home drawn contract…you are just out and injured!!!
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> The accountant’s malpractice insurance won’t cover the drawing of contract language because that is not what accountants are supposed to be doing, so even should they err, that error would not be one that you could sue them for…and so your problem would not have any money indemnification if you use the accountant rather than an attorney.
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> In this sort of case, the attorney is the “right tool†for this job. And, given the fact that the language troubles you, this is the time to have an attorney look over, modify and give an opinion about the contract….this is one time the money would be well spent to give you the contract you both need, rather than something that is “homemade†when you need the professional job.
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> Good luck with this,
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> Allison
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> Allison E. Moss-Fritch
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> New Moon Alpacas
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> Santa Clara, CA
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> http://www.newmoonalpacas.com
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> 408/248-3581
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> From: AlpacaTalk@yahoogroups.com <mailto:AlpacaTalk%40yahoogroups.com> [mailto:AlpacaTalk@yahoogroups.com <mailto:AlpacaTalk%40yahoogroups.com> ] On Behalf Of cedargrovealpacas@...
> Sent: Monday, June 01, 2009 7:31 PM
> To: AlpacaTalk@yahoogroups.com <mailto:AlpacaTalk%40yahoogroups.com>
> Subject: Re: [AlpacaTalk] Agistment Contract Question
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> Kathy;
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> I don't think that is even legal. More over, escrow isn't what it would be going into unless it is an estate or belongings of someone who passes and has to have their estate dealt with. If there is an issue with late funds or money owed , that would all have to be resolved by the parties in bringing the funds to current. If an animal is sold and there are fees still owed, you would be better off going to small claims court (doesn't cost much at all) and recovering what is owed to you plus court costs but keep in mind small claims will only allow $5,000 and under. I would guess you could do this even if there wasn't a sold animal. If there is more than one animal being agisted, it doesn't change anything other than the amount of money one is owed for the agisting service. As for the cria and taxes, you would have to talk to someone who knows how the taxes on that would work. My mom was going to school for animal law and contracts and actually offers a service of helping people out with things like this. However, what you are asking in your initial post is not legal nor does it have to do with escrow .
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> Maegan Blessing
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> Cedar Grove Alpacas, LLC
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> ----- Original Message -----
> From: "greenfleece60" <plooza@... <mailto:plooza%40yahoo.com> >
> To: AlpacaTalk@yahoogroups.com <mailto:AlpacaTalk%40yahoogroups.com> <mailto:AlpacaTalk%40yahoogroups.com>
> Sent: Monday, June 1, 2009 12:25:15 PM GMT -08:00 US/Canada Pacific
> Subject: [AlpacaTalk] Agistment Contract Question
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> Is it common for a contract for agisting to include a requirement that if a boarded animal is sold the funds go into an non-interest-bearing escrow account that the boarding farm then draws subsequent boarding fees from?
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> What would the benefits be for the agistor?
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> Kathy Quinn
> Clifton Heights, PA
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