The term “voetstoots”, a principle found in common law, meaning sold “with a shove of the foot”. Some buyers may not be mindful of this, when you buy something, there is an implied warrantee that the thing sold is free from any defects. It is however possible that one can contract out of this implied warranty by inserting a clause into the contract that says that the sale is voetstoots. This means ‘what you see is what you get’ and no warranties exist. The term voetstoots is a Dutch term which generally describes buying something “as is”. This means that a purchaser agrees that they buy an item as it appears at the time of sale and cannot later claim against the seller if he finds certain defects.
Exceptions to the voetstoots clause.
In common law, a seller is only liable if he knew about a defect and did not disclose it to the purchaser. Most sale agreements, contain a voetstoots clause freeing the seller from any liability for patent or latent defects, which the purchaser may later discover when he takes possession of the property or goods. However, there are exceptions that allows for the purchaser to cancel the contract and sue the seller for damages. The Purchaser must proof that:
a) The property/goods/items had the defect at the time of the sale;
b) The seller had knowledge of the defect;
c) The seller did not disclose the defect;
d) The seller deliberately concealed the defect, had he not concealed it and the purchaser learned of it, (the purchaser), would either not had continued the purchase or he would have negotiated favourable terms.
e) If the seller made fraudulent or bona fide material misrepresentation. (However,the latent defect is so serious that if the purchaser had knowledge of it he would not have purchase goods).
The Consumer Protection Act 68 of 2008 on the voetstoots clause. The Act (CPA) promotes a fair, accessible and sustainable marketplace for consumer products and services, including the purchasing or selling of immovable property. In terms of section 55 of the CPA a purchaser is entitled to receive property that is reasonably suitable for the purpose of which it is generally intended and is of good quality, in good working order and free of any defects. Property must also be usable and durable for a reasonable period of time. The CPA affects agreements concluded in the ordinary course of business by a seller, who supplies goods (property) to the purchaser of the said property. If a company buys and sells property in the ordinary course of its business, they may not include a voetstoots clause in an agreement of sale when it sells the property to a consumer. As a result, the seller cannot exclude liability for defects in the property by way of a voetstoots clause in their sales agreement. However, if the same seller were to sell his
own house, this transaction would not be subject to the CPA as the seller would not be selling this property in the ordinary course of his business. A private sale of property is not a transaction that falls within the ambit of the CPA as this would not be in the ordinary course of business.