What happens if the second-hand car that I just
bought turns out to be defective?
You need to distinguish between a private sale
(where you buy from someone who does not sell cars every day) and a motor dealer
who sells cars in the ordinary course of business.
If you buy a car from a private seller, only the common
law will assist and you can’t rely on the Consumer Protection Act (CPA) for help.
The protection that you enjoy under the common law is the subject of another
article. In short, 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).
In the context of buying a second-hand car:
·
The CPA
applies to consumers and suppliers of goods;
·
A consumer,
is a person who has entered into a transaction with a supplier in the ordinary
course of the supplier’s business, to buy a second-hand car;
·
A supplier
is a person who supplies second-hand cars in the ordinary course of his business;
·
The CPA contains
certain prohibited provisions that prevent a motor dealer from entering
into a sale agreement with a consumer that contains provisions that:
o
defeats the
purposes and policy of the CPA;
o
directly or
indirectly waives or deprives a consumer of a right entrenched in the CPA;
o
avoids a
supplier’s duty in terms of the CPA;
o
sets aside
or overrides the effect of any provision contained in the CPA;
o
that limits
or exempts a supplier of goods or services from liability for any loss
attributable to the supplier’s gross negligence.
·
The regulations to the CPA provides that a
term that that excludes or restricts the consumer’s rights or
remedies against the supplier, or limits the supplier’s obligation to honour
his or her obligations, shall be presumed to be unfair and unreasonable;
·
The CPA
contains an Implied Warrantee of Quality that in any transaction or agreement pertaining to the supply of goods to a
consumer:
o
There is an
implied provision that the producer or importer, the distributor and the
retailer each warrant that the car is safe and of good quality;
o
The implied
warranty is in addition to any other implied warranty imposed by the common law
or any other public regulation as well as any express warranty or condition
that the consumer has in respect of the goods;
o
This
warranty is valid for a period of six months. The six-month period is calculated
from the date of delivery of the car to the consumer. During this period, the
consumer may return the defective car without penalty and at the supplier’s
risk and expense.
o
When a
consumer relies upon the implied warranty of quality when returning the car,
the consumer has the election as to whether the supplier must repair or replace
the car, or whether the supplier should merely refund the consumer the price
paid for the car.
o
If the
consumer elects that the dealer must repair the car, if within three months of
repair the failure or defect is not remedied or another failure or defect
arises, the supplier must replace the car or refund the consumer the price paid
by the consumer for the car.
o
The implied
warranty entrenched in the CPA is in addition to any other implied warranty or
condition imposed by the common law or any other public regulation, and, is in
addition to any express warranty or condition given by the producer or
importer, distributor or retailer.
Car
dealers think that they can get out of their obligations under the CPA merely
by getting the buyer to sign a contract containing a voetstoots clause. This is
wrong.
The
only way that dealers can get past the implied warranty is by advising the
consumer that the car is 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 dealer should describe the condition of the goods in specific detail
to make it clear in which condition the car is being sold. The buyer then must “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.
