Law School

The Voetstoots Clause

With the purchase price of new motor cars rapidly increasing, for the vast majority of our population the acquisition of a new car is nothing more than a dream. More and more people are thus left with no option other than to buy a second hand car. When one buys a used car privately, the sale is normally subject to a  voetstoots clause in the sale agreement.  The new Consumer Protection Act has virtually nullified the voetstoots clause when purchasing from a dealer.

Furthermore,  if one purchases a house or townhouse or a sectional title unit from a private individual or as a once-off transaction, this acquisition is also invariably subject to a voetstoots clause in the sale agreement.  The voetstoots clause does not apply to sale agreements concluded by estate agents or developers or people who are in the business of buying and selling properties. Thus, the purpose of this article is to explain what is meant by such a sale and offers some suggestions as to how to protect oneself when making these purchases. After all, the purchase of a house is the single most expensive asset most of us will ever commit to.  The purchase of a car, price wise, comes very close as it is an asset which one hopes will last for a very long time.

Before explaining what is meant by a voetstoots sale, it is crucial for us to understand a few very basic principles. We need to appreciate that when one concludes any contract of sale, when ownership passes from the seller to the buyer two implied warranties exist.
These are:

1. The implied warranty against eviction which, simply put, means that one is guaranteed that no one can deprive the purchaser of ownership of his property, and if this warranty is breached the purchaser is given certain legal remedies which he can exercise against the seller; and;

2. The implied warranty against latent defects which, simply put, means that one is guaranteed that the possession purchased is free from any defects which are not clearly apparent or visible at the time of the sale. Likewise, if this warranty is breached, the purchaser is given certain legal remedies which he can exercise against the seller.

Now it is possible that one can contract out of the second implied warranty mentioned above by inserting a term into the contract by saying the sale is voetstoots, which very simply put, means what you see is what you get and no warranties exist. For example if you buy a house voetstoots and after you take ownership you find that there is a leak in the roof, you would have no legal remedy against the seller as what you saw was what you bought. All too often Lawyers are regularly consulted by purchasers who discover defects in the articles they have purchased in voetstoots sales which they contend only came to their attention after the conclusion of the contract, when it becomes far too late as one can never close the stable door after the horse has bolted.

Our Law does give purchasers limited protection in voetstoots sales and it will come to your aid if you can show the Court the following:

The purchaser would have to prove:
1.  that the article had the defect at the time of the sale;
2.  that the seller knew of the defect;
3.  that the seller did not disclose the defect;
4.  that the seller deliberately concealed the defect as he knew that if it was not concealed and the purchaser saw it, he (the purchaser), would either not have continued the purchase or he would have negotiated a more favourable purchase price.

If one now examines what I have written above very carefully, one will observe the following:
1. The purchaser would have to rely on the evidence of an expert to prove the defect existed at the time of the sale and to provide evidence of concealment. A very good example is the purchaser’s establishment of cracks in the wall which were concealed with the application of wallpaper over the walls where the cracks appeared. An expert contractor would be able to determine how long the cracks existed and of the fact that they were concealed as stated. Experts are most reluctant to testify in Court as a day in Court causes loss of business to them which makes the cost of procuring the availability and willingness of such an expert expensive.
2. The element of concealment and failure to disclose demonstrate that if the seller did conceal the defect and failed to disclose it with the intention of misleading you in the purchase in his terms then, most simply put, he has acted fraudulently. As we have seen in the recent upsurge in much publicized high profile recently decided cases to prove fraudulent intent is most difficult, if not impossible to prove.

The upside to the rather gloomy picture painted above is that there are some easy practical steps that you can and should take when contemplating buying a property or motor vehicle voetstoots:

1. Before concluding the transaction ensure that you take an expert with you to view the property such as an architect or a builder as these persons have the expert eye which can easily pick up any defects and your attention to them can be drawn, he can detect leaking taps, rising damp, insecure foundations and leaks which all too often are the problems envisaged. Being warned beforehand and knowledge of the defects in advance allows you to take steps to protect yourself. If it is a motor car take it through an AA test where for a relatively small sum such a test will reveal the defects which you are not trained to pick up. The results of the test could easily mean the difference between a happy purchase or a disastrous one.
2. Again before concluding the transaction, insist that you let your legal adviser peruse the draft contract. He or she is best positioned to ensure that from a legal perspective you are as well protected as possible.

By following these two relatively easy steps you will be acting prudently and appropriately. It is the right thing to do.