Common Standard Provisions: The Voetstoots Clause PDF

A form of exemption clause which indicates that the goods are sold “as is” and which exempts a seller from liability for any diseases or defects in the thing sold A statement that the sale is “voetstoots” without more is sufficient to bring the exemption into play. An example of a mo...

A form of exemption clause which indicates that the goods are sold “as is” and which exempts a seller from liability for any diseases or defects in the thing sold A statement that the sale is “voetstoots” without more is sufficient to bring the exemption into play. An example of a more comprehensively drafted statement as per the Van der Merwe v Meades case: The property is sold “voetstoots” and as it stands, and the seller gives no warranty in regard to the building and any improvements to the property. The seller shall also not be responsible for any patent or latent defects in the property. COMMON LAW It is competent under the common law for parties to agree that the seller shall not take the risk of the presence of specified or of all diseases or defects in a voetstoots clause. This will include a clause stating more broadly that “no warranty or guarantee as to the quality is given expressly or impliedly” – SCA in Van der Westhuizen v Arnold and Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd interpreted this to refer to defects Voetstoots clause will not avail the seller where the thing tendered is an entirely different thing to that which was bargained for.  Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd: supplier supplied a foodstuff that contained a banned contaminant, rendering it unfit for human consumption, the court found that the supplier had failed to perform in terms of the contract because what was delivered was different in substance to what was purchased, rather than being merely defective. In such a case, there is non-performance, rather than defective performance that attracted exemption. “Now it seems to me somewhat a mis-use of terms to say that to supply one article in lieu of another article which was ordered can be brought under the term of latent defects” - Judge Mason in Marais v Commercial General Agency Ltd Question: Who bears the onus of proving the existence of a voetstoots clause? Onus on the party alleging the existence of the clause – normally the seller (Better view) Loading… He who alleges must prove – Pillay v Krishna IMPORTANT: No one can contract out of liability for fraud – Wells v SA Alumenite Co Ltd; Government of the Republic of SA v Fibrespinners & Weavers (Pty) Ltd What constitutes fraud on the part of the seller? Debated for a long time  Debate finally cleared up in the Van der Merwe case. Court decided: a seller know (a) knows of a disease or defect in the thing sold and (b) deliberately conceals what he knows with intent to deceive is, as regards the disease or defect deliberately concealed, not protected by the presence of a voetstoots clause in the contract if there is such a clause therein. If the 2 reqs cannot be proved, seller will be entitled to the benefit of the clause. Decision in Van der Merwe was confirmed by the SCA in Odendaal v Ferraris and Banda v Van der Spuy The same rules applies to agents of the seller – if an agent of the seller fails to disclose the existence of defects, this will be attributable to the principal, and will prevent reliance on a voetstoots clause – Hay v Hilder. Constructive knowledge is not enough to bring this rule into operation, nor is knowledge of which the seller was once, but of which he is no longer, conscious. Conscious knowledge of the presence of the disease/defect in question brings the rule into operation. Decision in Glaston House (Pty) Ltd v Inag (Pty) Ltd is instructive on inferences that may be drawn concerning conscious knowledge  Decision dealt with whether the seller, through its sole director (Selige) “deliberately concealed the fact that the pediment (in the building sold) had been proclaimed an historical monument” Facts on pages 288 – 289 If the seller is conscious of circumstances which give him reasonable grounds to suspect the existence of a disease/defect, he is obliged to disclose his knowledge of the circumstances The seller, though he has no express knowledge of the defect of the thing sold, is in this respect considered to have knowledge of it, if he has reasonable grounds to suspect its existence and does not say anything of it to the buyer, for such concealment is fraud. Loading… The facts of the Van der Merwe case are also instructive. The court held that the respondent had not discharged the onus of showing that the appellant was aware of the latent defect and so was not deprived of the benefit of the voetstoots clause.