Sale agreements commonly include a clause stating that the item or property is purchased from the seller voetstoots. This means that the buyer acknowledges that s/he has purchased the property as it is, with all its perfections and all its imperfections. The clause indemnifies the seller from any liability which may later arise should the item or property be defective.
Ordinarily, the purpose of the clause is to protect the seller from endless claims of liability that may not have been due to any fault of the seller. However, sellers cannot always rely on their voetstoots clause to escape liability. A seller cannot utilize a voetstoots clause to escape liability where s/he was aware of a latent defect in the item or property but concealed this information to induce the buyer to enter into a sale agreement.
Latent defects are those defects that are hidden and not discoverable by reasonable inspection, whereas patent defects are visible and discoverable by reasonable inspection.
How Do You Escape The Voetstoots Clause?
To escape the voetstoots clause certain requirements must be proven. These are: the seller knew of the defects; concealed them or failed to inform the buyer with the intention to induce the buyer to enter into a contract. Where a seller is aware of certain defects on their property and fails to disclose this to the buyer, they cannot rely on the voetstoots clause.
In such a case, as a buyer, you may either elect to cancel the contract or sue the seller for a reduction in the sale price due to the assumption that had you been aware of the defect, you either would not have entered into the contract or would have negotiated it on more favourable terms.
Conclusion
Voetstoots clauses are very important for both the buyer and the seller. For the seller, when used correctly, it may assist you in avoiding certain claims, but when used incorrectly it provides no protection and a buyer may still be able to negotiate for a reduced cost or cancel the contract. Considering the same, disclosure of defects by the seller is extremely important as is a proper inspection by the buyer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.