When the Romans ruled, some scholar penned the words “Caveat Emptor” (Let the buyer beware). Things in the used chariot trade must have been tricky then, or the philosopher concerned must have had a feeling that one day there would be a second-hand car market where his warning would apply.
Move on to the 21st century, the South African Consumer Protection Act of 2008 (CPA) and that cover-all phrase “voetstoots” (As Is). Appropriately enough, literally translated from Afrikaans as “a push of the foot”, it gives a pretty good idea that a seller using the phrase is somewhat relieved when a car is sold and ownership is transferred.
It is at this point that things get muddy. Some people say that cars cannot be sold voetstoots any longer. Others claim they can. The truth, as usual, is in the middle.
Voetstoots 101: Difference between ‘patent’ and ‘latent’
First, understand the difference between “patent” and “latent” defects.
When you are thinking about buying a used car, the patent defects would be those that are easily seen. Examples would be a smashed windscreen, rust or a big dent.
Latent defects, unfortunately, are not so obvious. You can’t tell easily if a gearbox is defective or if the car has a nasty habit of cutting out when you hit 130km/h — a problem if you are on a highway at the time.
Still with us? Good. So, if you get a car from a private seller and things that could land you in a hospital aren’t revealed, the seller would be guilty of hiding information that would have meant that you wouldn’t have bought the car.
The voetstoots clause: Private vs dealer
Unfortunately, the CPA does not apply to vehicles that are privately sold. If you buy a car and feel that you have been deceived as to its condition, the only way to solve the problem will be through taking action through common law. Getting to grips with the problem will either require an attorney or a reasonable seller who is willing to discuss any issues.
When it comes to a dealer, however, the CPA overrides the voetstoots clause. A buyer under the CPA is entitled to a car that is of good quality, reasonably suitable for the purposes for which it is intended, is defect-free, durable and safe.
As an expert from law firm Miltons Inc advises when it comes to voetstoots sales: “Don’t risk having to fight in court over whether or not the CPA applies to your purchase, and over whether or not any voetstoots clause is valid.”
“Be warned too that depriving a private seller of the protection of a voetstoots clause is never going to be easy. This is particularly so since you will need to prove that the seller intended to defraud you by concealing a defect.”
Buying or selling: What to do
As usual, it all comes down to emotions. Don’t let the sniff of a voetstoots bargain rule your common sense.
Ask the private seller if he or she is open to the car being thoroughly tested to see if something that is potentially catastrophic is lurking under the bonnet. If you have offered to carry the cost and the reply is hesitant, remember that there are many other cars in the market.
If you are selling the bargain, draw up a voetstoots clause that sets out precisely what is wrong with the vehicle. Then, have the car checked by an independent expert. Attach this report to the voetstoots list and hike your price to cover the extra expenditure- it will still be a bargain, right?
When negotiating a sale with a dealer, asking for a technical report is also reasonable. It also pays to realise that it is can be assumed that buying an older car with a high mileage or that is obviously well used and is sold in this condition, can’t be expected to have a life as long as a new vehicle.
As the Roman said, when buying the used chariot, ‘Caveat Emptor’.
Read the original article on The South African