Voetstoots clauses: great confusion ?????
Due to the recent amendments to the Consumer Protection Act 68 of 2008 there is great confusion as to the Voetstoots clauses in agreements of sale of fixed property:
The following sections of the aforesaid Act must be considered:
Section 55: Consumer (ie person buying from supplier) has right to receive goods that are free of any defects (patent or latent), unless consumer was informed that goods were offered in specific condition and consumer agreed to accept goods in such condition.
Section 49: Clauses in sale agreement limiting supplier‘s liability for defects must be in plain language and its nature and effect must be disclosed in conspicuous manner before consumer signs the agreement
The practical effect of these clauses is the following:
Voetstoots sales not affected by Act where seller is an ordinary‘ seller (not a 'supplier‘)
Supplier‘ liable for both patent and latent defects, and cannot sell voetstoots, unless
- a buyer is informed that property is offered for sale in specific condition; and
- supplier‘s common law liability for defects is excluded in the sale agreement; and
- the relevant clause is plainly worded and its effect conspicuously disclosed.
One option: assume liability for defects and price the property accordingly.
Alternatively: exclude liability for defects (both patent and latent) by
(a) disclosing property‘s specific condition; and
(b) including an appropriately worded clause in sale agreement
Problem: not clear what is meant by property‘s specific condition‘.
Best to fully describe property‘s condition, including the following:
Property‘s history (age / repairs, etc)
Current defects known to seller
General statement that seller not aware of any defects other than those disclosed, but that property may or may not have additional defects (list: dampness, leaking roof, etc) having regards to its history and location
Statement that property is offered for sale on the basis and in the condition described