Is that voetstoots?


happy-unhappyVoetstoots is a wonderful word. Used to be, if you attach it, and you could sell any old second-hand object as is, no matter what condition it is in, without any guarantees. As for the buyer – he had some recourse and protection only if he was able to prove that that the seller knew about the defects and deceptively kept quiet about them.

Are things different now that we have the Consumer Protection Act (CPA)?

The short answer is – yes, but not always and in all cases.

It is true that the CPA says that every consumer “has the right to receive goods… of good quality, in working order and without defect”. However, it can be argued that this condition applies only to people or entities that sell “in the normal course of their business”, and not private, once-off sellers.

So, where does this leave sellers on bidorbuy? If selling is your business, the CPA says you have to offer at least a 6-month warranty. Only defects or faults expressly disclosed to the buyer before the transaction are exempt. That means that the buyer can not cite CPA if the faults and defects are clearly stated in the description: for example, the bicycle’s bell is not working; the second-hand table has a dent, etc.

However, if the buyer discovers a different pre-existing defect within six months of the sale, he may have the right to insist on repair, replacement or a refund. (We say may because it’s not always easy to determine when the newly-discovered defect occurred, before or after the sale).

It should be emphasised that sellers can never use a voetstoots clause to avoid liability for any defect they are aware of. Deliberate failure to disclose a material defect is fraudulent, and that goes for private, once-off sellers too; they still have the obligation to disclose any known faults.

Disclaimer: Do note that we at bidorbuy are not legal experts. If you as a seller (or buyer) have any queries, you need to consult a lawyer or a legal expert, and not rely on the information supplied in this blog post.