Does the Consumer
Protection Act, 2008 (“CPA”), which became effective on 1 April 2011, mean the
end of the "voetstoots" or "as is" clause?
What does voetstoots mean
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
(that you buy the goods “as is” [warts and all] and cannot rely on the
implied right to defect-free goods and complain later if you find certain
defects in the goods).
When the seller can’t rely
on the voetstoots clause
The common law does, however, allow you to
cry foul and sue the seller (even if the contract contained a voetstoots clause) for cancellation
of the contract or a reduction in the selling price where the goods were
defective at the time of the sale, that the seller knew of the defect but failed
to disclose it to the buyer, knowing full well that if the buyer knew about it
he would either not have continued the purchase or would have negotiated a more
favourable purchase price.
The
effect of the CPA on the voetstoots clause
In terms of the CPA the consumer is entitled to receive goods that are
reasonably suitable for the purpose for which they are generally intended, are
of good quality, in good working order and free of any defects.
The definition of
“goods” has been amplified to include a legal interest in land or other
immovable property.
The CPA provides for a statutory duty of disclosure
in consumer transactions. The Act expands on the common law obligation to
disclose latent defects by requiring suppliers to disclose material facts and
to correct misapprehensions on the part of the consumer, if failure to do so
would amount to a deception.
However, sellers can exclude themselves
from this obligation by advising the consumer that the goods are being offered
in a certain condition. The consumer must then agree to accept the goods in
that particular condition. E.g. a motor dealer should explain that the beat-up
Volksie is not new, point out the obvious and not-so-obvious defects and if the
consumer accepts this, then the sale would be as-is.
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.
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 CPA, 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. 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.
Time and case law will determine if the CPA
has sounded the death knell of voetstoots
clauses, but whatever its fate, the consumer is infinitely better off under
the CPA.
