OPINION
PROPERTY
The ‘voetstoots’ clause –
an explainer There are certain terms used in the legal profession which are universally known, among them ‘voetstoots’. But what does this mean? Advocate Bryan Hack, a propertyexperienced advocate at the Cape Bar explains this term and its implications. Bryan Hack Adv. Bryan Hack
Selling an item voetstoots means that the purchaser is buying it as it stands, whether or not it has patent or latent defects. Patent defects are obvious on normal observation, whereas latent defects refer to hidden or unseen defects. A voetstoots clause protects sellers in the event of latent defects coming to light after the transaction has been concluded.
Two common misconceptions This article addresses two misconceptions about the term ‘voetstoots’. One, that the legal principle protects a seller for any possible defects in an item being sold. This is because of the belief that a voetstoots clause in an agreement places all obligation on the buyers to inspect and satisfy themselves about the quality of the item they are buying. The other is that a voetstoots clause has no further legal effect since the enactment of the various pieces of consumer protection legislation by Parliament. As with most legal concepts both these perceptions are wrong. As so often is the case, the response of a lawyer to both these propositions must be “it depends”. As to the first, that a voetstoots clause removes any liability by the seller of an item for defects, this has never been the law. In simple terms, a seller will be liable for any damages, such as the cost of repair incurred by a buyer if the seller was aware of the defect and failed to disclose it. The concept of “being aware” is in itself subject to the qualification “it depends”. To be aware in this context is to have no knowledge. A seller can be liable for a defect if they should have been aware of an existing defect that would affect the buyer. This was addressed in a recent judgment handed down in the Western Cape in the case 2016 (1) SA 293 (WCC) . volume 12 | issue 3 www.tobuild.co.za
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