How does the voetstoots clause apply to sale agreements protected by the CPA?

Since the Consumer Protection Act (CPA) has come into operation in South Africa, a major point of interest has concerned the application of the voetstoots clause in relation to sale agreements that fall under the CPA. This blog post will look specifically at the relationship between voetstoots and the CPA.
voetstoots and the CPA voetstoots and the CPA

Know the terms?

A voetstoots clause states that the seller sells the property “as is”. The effect is that the seller does not take the risk or responsibility for any defects associated with the property. This clearly provides an advantage to the seller.
The CPA, in essence, seeks to protect consumers when dealing with (bigger, more powerful) businesses.

Voetstoots and the CPA

So, how does the CPA impact the position of the voetstoots clause in relation to sale agreements? The general view is that it would not be acceptable to include a voetstoots clause in a contract if the transaction falls under the protection of the CPA. The CPA defines “transaction” as any agreement concluded in the ordinary course of business by a supplier and consumer. What this means, by example, is that a second-hand car company (whose ordinary business is to buy and sell cars) may not include a voetstoots clause in its sale agreements when selling its cars to buyers. It follows, then, that if a company whose ordinary business is not buying and selling cars decides to sell, for instance, a company car, it may include a voetstoots clause in the contract.
The reason for the above view is that the CPA considers voetstoots clauses to be “unfair, unreasonable and unjust”. A supplier must not transact on terms that are unfair, unreasonable or unjust. What is more, selling goods under a general voetstoots clause would amount to a clear deprivation and waiver of a consumer’s right because of a term that is unfair, unreasonable or unjust. This is also prohibited by the CPA.
It should be noted, though, that the CPA does not prohibit a supplier from selling goods of a particular condition. That condition must just be disclosed to the consumer.
If you need advice on your rights as a consumer or as a business operating under the CPA, please do not hesitate to contact us at [email protected].

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