Vootstoots
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Buying something 'as it stands'
When you buy something voetstoots you buy it 'as is', 'as it stands', 'with all its defects, latent and otherwise' and all its advantages. The seller will not then be liable for defects in the article sold.
It is common for dealers to sell goods voetstoots - although this practice can easily lead to abuse, and the South African Co-ordinating Consumer Council is very critical of the use of this escape hatch by sellers. (See consumer protection.)
Normally, there is a duty on a seller who is a manufacturer of a product or a dealer in that type of product and has publicly professed to having expert knowledge or skill in relation to the product, to indemnify the buyer against loss resulting from latent defects. However, liability for consequential loss may be excluded by agreement between the parties concerned, usually to the detriment of the buyer's common-law rights.
Whenever possible, try to avoid making a voetstoots purchase, although at times you may have no choice. A voetstoots clause does not, however, relieve a seller of liability for any known defects at the time of sale. Indeed, in those circumstances, the seller could face a charge of fraud, but the difficulty lies in the buyer proving the fraud.
If the seller insists on selling voetstoots, try to protect yourself by asking about the condition of the goods being offered. For example, is the motor running? Are there any mechanical, electrical or other faults? In this way, you protect yourself by in terms of a warranty, or a representation, should any defect come to light after the sale. (See fraud.)
If the seller who sells goods which have a latent defect making them unfit for the purpose for which they were bought is unaware of this defect, he or she is protected by a voetstoots clause in the contract. On the other hand, a seller who knows of a latent defect at the time of the sale would not be protected by the voetstoots clause.
A latent (that is, hidden or unseen) defect is one that is not apparent on ordinary careful inspection; a defect that would be apparent on ordinary careful inspection is known as a patent defect, and with such defects the maxim caveat emptor - let the buyer beware - applies.
If the article with a latent defect is wholly unfit for the purpose for which it was bought, you would be entitled to cancel the contract and be repaid the price you paid against redelivery of the article. Otherwise you would be entitled to a reduction in the price equal to the drop in value caused by the defect.
You would have to prove that the defect, on a balance of probabilities, existed at the date of sale. If it revealed itself shortly thereafter, this would normally be a factor in your favour; and if it revealed itself much later, this would as a rule weigh against you. But ultimately every case depends on its own particular facts.
The seller may not necessarily agree to your allegations and demands, in which case you may have to consider instituting legal action.
Buying a car voetstoots
Some second-hand cars, particularly the older models (which are more prone to defects), are sold voetstoots, meaning that they are accepted by buyers as they see them, and that the sellers make no guarantees or representations. However, a voetstoots clause may not be included in a contract governed by the Credit Agreements Act, 1980 (see credit agreements).
If you buy a car on these terms, you will have no grounds for a claim unless the seller knew of a specific defect and deliberately neglected to inform you.
A statement by the seller that a second-hand car is in 'good condition' cannot be taken to mean that it is free of defects.
When selling a car, it is important to ensure that your advertisement contains no untruths. If you advertised your car as being in 'sound mechanical condition' and it is not, you could be liable for the costs of putting the car into a 'sound mechanical condition' should the buyer take you to court.
When you buy a car voetstoots 'as is', it is wise to have it inspected by an expert before you agree on the sale. If you're in doubt, the Automobile Association will, for a fee, inspect the car and supply a written report on its condition.
Remember, too, that a roadworthy certificate is no guarantee against defects. The purpose of the roadworthy inspection is to make sure that the car conforms to regulations as regards its safety, not necessarily its condition.
http://www.legalcity.net/Index.cfm?fuse ... ID=5192428
