When does the Voetstoots Clause protect the seller of a property or vehicle?
A look at what the so-called voetstoots clause entails and how it can impact the sale of your property or motor vehicle. It may not provide the protection you think.
Mr Smit* entered the boardroom with a summons in hand – “I have been sued, but its okey, I sold it voetstoots”. I have consulted with many clients like Mr Smit who have sold vehicles or houses to unfortunate purchasers. Likewise, I have also consulted with many disgruntled purchasers who believed that they have been conned into buying a defective vehicle or home. These purchasers came to see me as a last resort “just in case there is something that can be done” because they bought a home or car voetstoots or “as is”. The Mr Smits often left the boardroom a little more worried than when they entered and the purchasers with much more hope.
If you are a seller of something, a voetstoots or “as is” clause is not an automatic get-out-of-jail-free card, and if you are the purchaser, an automatic barrier to justice. In a contract of sale, there exists in our law an implied warranty against latent defects in the thing being sold. Put differently, it means that if something is sold with a defect, it can be construed as a breach of contract. But what is a latent defect?
A defect is latent if it is not visible or discoverable on inspection. Typical examples may be a crack in the wall of a property which exists underneath the plaster or a crack in a car’s engine block. The inclusion of a voetstoots clause protects the seller against any claim for damages caused to the purchaser due to the existence of a latent defect. There is a catch, however. It only protects the seller if the seller was unaware of the existence of the latent defect. The seller will not be protected if he was aware of the defect and deliberately failed to disclose it. The voetstoots clause will also not protect the seller if the seller delivers something different from that which was purchased.
A purchaser can, however, succeed with a claim against a seller, despite the existence of a voetstoots clause. To do so, the purchaser will have to prove that:
· The object purchased had a latent defect; and
· The seller expressly, or by implication, warranted that the thing purchased had no
defects; or
· The seller manufactured the thing purchased; or
· The seller concealed defects in the item purchased which the seller knew existed.
If the purchaser can prove the aforementioned, he can claim for the cancellation of the contract and return of the item purchased together with a repayment of the purchase price. The purchaser can also claim for a reduction of the purchase price. These claims can be instituted in the alternative, if the purchaser institutes legal action.
To summarise, if you have bought a home, vehicle or other item and thereafter realise that there are defects of which you were not made aware of, do not simply be put off by a voetstoots or “as is” clause in your contract, you may have a claim.
Article by Andries Stander
Stander Attorneys
Email. andries@standeratt.co.za
Mobile. 084 400 0880
DISCLAIMER
The information contained herein should not be used or relied upon as legal advice. No liability is accepted for any errors or omissions, nor for any loss or damages arising from reliance upon any information herein. Contact your legal representative or adviser for specific and detailed legal advice applicable to your factual matrix.
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