Is a voetstoots clause still valid and enforceable? The Consumer Protection Act that came into effect on 1 April 2011 has many consumers jumping for joy and many more businesses screaming from the rooftops. The effect of the Consumer Protection Act on the sale of goods in general is far reaching and when looking more specifically at the right of consumers to be informed of all the details regarding the goods they are purchasing, it is clear that the well-known “voetstoots” clause may very well be in serious danger. If you are a consumer in need of protection, you can read about your options. If you are a supplier of goods or services, we can provide you with practical legal solutions related to consumer protection.
What does voetstoots mean?
The term voetstoots, a principle found in our common law, literally means sold “with a shove of the foot”. Even though some buyers may not be aware 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 term into the contract that says that the sale is voetstoots. This simply 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” and counters this implied right to defect-free goods. This means that a buyer 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.
What you see is what you get
The effect and exceptions to the voetstoots clause
In terms of the common law, a seller is then only liable if he knew about a defect and did not tell the buyer about it. Most agreements of sale, especially of immovable property, contain a voetstoots clause freeing the seller from any liability for patent or latent defects, which the buyer may later find when he takes possession of the property or goods There are however common law exceptions that allows for the buyer to cancel the contract or sue the seller for a reduction in the selling price. These are:
- that the article had the defect at the time of the sale;
- that the seller knew of the defect;
- that the seller did not disclose the defect;
- 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.
- The seller knew of the defects and did not tell the purchaser about them;
- If the seller made fraudulent or innocent material misrepresentation. (but only if the latent defect is so serious that if the purchaser had known of it they would not have bought the goods).
It is clear that in many cases the voetstoots clause does protect the seller more than the buyer and that in many cases a buyer has been negatively effected by this. This is why the newest piece of consumer legislation decided to address the issue of supplying quality goods, which directly affects the effectiveness of the voetstoots clause.
The effect of the CPA on the voetstoots clause
The effect of the new Consumer Protection Act is that the voetstoots clause will have little power to save a dishonest seller after March 2011. The seller will no longer be able to hide behind this clause to save themselves from later claims by the buyer if they were aware of the defects. As Mr Sipho Tlelane director of legal support and prosecutions at the Department of Trade and Industry (DTI) says that “the concept of voetstoots is not going to be applicable any more”. The CPA addresses this issue by providing every transaction that falls within its scope an “implied warranty of quality”. This means all goods will be sold with the expectation they are of good quality, in good working order and free of all defects.
A defect is a material imperfection that renders goods less acceptable or less practicable . This includes obvious problems, or latent defects, and those hidden future problems, or patent defects, which sellers are able to escape under the voetstoots clause provided they were not aware of such defects at the time of sale. If any defects come to light after sale or goods do not comply with standards set out in the Act, the buyer is entitled to return them within six months of a sale and the Act holds businesses liable to either repair or replace the goods, or to refund the purchaser. Tlelane added that after a defective product is repaired, the repair job itself will have a further three-month warranty. In addition to these rights provided to consumers under the CPA, the CPA also provides further should any damages arise as a result of defective goods, they would be able to claim damages from the seller. This provision related to product liability has already come into effect in April 2010.
The only way sellers can get past the implied warranty is to describe the condition of the goods in specific detail to make it clear in which condition the goods are being sold. The buyer then has to has to “expressly agree” to accept the goods. Only if the buyer “knowingly acted in a manner consistent with accepting goods in (a less than ideal) condition” would the implied warranty of quality fall away. Every defect must be described in the contract of sale that the buyer signs.
The way forward: Beware the seller!
your voetstoots clause will not come to your rescue
It is clear that the CPA stays true to its name and gives buyers the right to quality goods which are free from any defects. This means that suppliers of goods will need to revisit their contracts of sale in order to make provision for any and all defects that could possibly be present in the goods they supply to consumers. If they do not comply, they run the risk of not only losing business and getting bad publicity, but also having to repair, replace or refund the price of all goods supplied to consumers. This is going to have an immense effect on how suppliers will have to approach sale contracts. Suppliers beware of the new buyer’s right to kick up a fuss over defects in goods you have sold to them and your voetstoots clause will not come to your rescue.