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Do Look a Gift Horse in the Mouth

When sellers, not buyers have to beware

Gifting. Getting. Buying. Selling.  All in a day’s work. Or so we think. We need to think again.

There is a saying in law, ‘caveat emptor’. It means, ‘let the buyer beware’. The onus of a bad purchase is on the buyer, not the seller. True, the concept is changing these days and we need to be thankful for the turn of events. The shift is termed, ‘caveat venditor’. The seller is liable too.

For now, we will not consider contracts. What about gifts? What happens when the gift hits back?

The personnel in charge of a prison in Lancaster County wanted help. Obviously, they had seen the killer dogs, on leashes, that some American police use to control crowds. They decided they wanted one too. The decision was to get a Rottweiler. Now Wikipedia paints a rather placid picture of the Rottweiler; with reservations. The rest of the world looks upon them as killer dogs.

That is the breed that the handlers wanted. Stocky, tough, alert, the Rottweiler would be the best. So they got one and named him Diesel. Why? Maybe, because both have German origins. Diesel was trained to keep the prisoners in check. And, since the prisoners are no spring chickens, Diesel had to be mighty efficient.

So Diesel attacked all and sundry, including five of the guards. Remember our previous title, “Who will guard the guards”? Diesel was more than up to that job. But since Diesel was prone to literally bite the hand that fed it, he had to go. He was gifted to a security agency, while glossing over the fact that Diesel brooked no nonsense. Diesel bit his new keepers. The keepers sued.

You be the judge.

Those who gifted lost in court. They had to pay 1.5 million dollars.
Next, we have a case involving our local tradition of distributing mid-day meals. The meal is a gift to the schoolchildren, no matter that the food also ensures attendance. Very often, we read that the children have fallen ill due to contaminated stuff being served. Usually the school is held responsible.

What if, at a wedding feast, a number of invitees fall ill? Or, maybe, be fatally sick? Who should be held responsible? The caterer or the host? Can anyone be sued?
We fall back to an old axiom of ours. If there is a malady, in this case literally, there has to be a remedy.

Now, you be the judge.

As for the schoolchildren, the institution must be put in the dock. It is they that served the food. The care has to be theirs. The authorities are usually being indicted and that is how it should be.  However, in the matter of the wedding feast, is the host liable? To our mind, the answer is: ‘Yes’.

Why? When a person is invited and fed, he expects to be looked after, not poisoned. The host has a duty of care. He may, in turn, sue the caterer; but he cannot escape his obligation to his guests. Otherwise, all wedding feasts would be potential ‘Last Suppers’.

In the Rottweiler’s case, all that the donors had to do was warn the donees that Diesel was an attack dog and had been trained as such. The prison authorities concealed a fact that had the potential of harm. They had to pay. The argument may have been that it was a gift, not a purchase contract. No consideration (money) was involved. That would not have cut ice with the judge. He, obviously, saw it as the passing off of an unwanted and dangerous article onto another.

This was a case of caveat venditor, as are the other two. All without the basic ingredients of a contract. Yet, justice was served in one and must be so served in the others.  So, the next time you offer a gift, think twice. Please.

Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected] or [email protected]

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