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February 04, 2016

Private sale - voetstoots got the boot?



Q
I sold a car on 26/01/2016 privately to a buyer who signed a contract stating that the sale is "as is" and that no warranties or guarantees can be given. He now claims that he has experienced problems with the radiator. He claims he has 7 days to report the problem to me and that I must fix it or he will take me to court. Does this 7 days policy really exist? What is your advice to me? I did not misrepresent the car before sale as there were no problems while in my possession. 

A
There is some confusion concerning the validity of voetstoots clauses (literally, "with a shove of the foot") in private sale agreements. Most people think that the Consumer Protection Act (CPA) has made such clauses invalid. 

The CPA would protect a buyer who buys a car from a dealer. However, a private sale of property is not a transaction which falls within the ambit of the CPA, as you were not acting within the ordinary course of your business, and therefore the common law position applies.

A 'transaction' in terms of the CPA refers to agreements concluded in the ordinary course of business by a supplier and a consumer.  

On that basis, in my opinion, the ‘as is’ clause binds the buyer. 

The cooling off period (allowing a buyer to change his mind within 5 days) only relates to a sale that resulted from direct marketing, which does not apply in your case. 


See this article for a more detailed explanation.
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