VOETSTOOT CLAUSES AND THE CONSUMER PROTECTION ACT
Prior to the Consumer Protection Act, all contracts providing for a supply/sale of goods contained an implied warranty. This implied warranty allowed a supplier to be held liable for latent defects of the goods sold/supplied. However, these agreements would generally contain a voetstoot clause, which excluded this liability, thus resulting in the consumer accepting the goods ‘as they stood’.
The supplier’s implied warranty against latent defects could thus be excluded by a voetstoot clause, thus relieving the supplier from all liabilities which arose as a result of defects which he was unaware of at the time of the conclusion of the agreement and did not attempt to conceal them with the intention of defrauding of the consumer.
However, with the enactment of the CPA,, which provides for transparency within all transactions to which it applies and more specifically section 55 which makes provision for the right of a consumer to receive goods that are fit and reasonably suitable for the purpose for which they are generally intended for (goods that are of good quality and free from any defects), the inclusion of voetstoot clauses was brought into contention.
Section 55 (6) of the CPA only permits clauses which have similar effects as voetstoot clauses if the supplier of goods:
- is honest with regards to the true condition of the goods,
- has allowed the consumer to inspect the property,
- has allowed the consumer to familiarise themselves with the same, and
- has adequately informed the consumer of the same, preferably in written form.
The consumer then signs an agreement in which he undertakes to accept/receive the goods in that condition (to receive the goods ‘as they stand’).
Therefore, we submit that the original wording of voetstoot clauses have been brought into question to the extent that a supplier can no longer exclude his liability for the latent defects in goods that he supplies by making the consumer sign an agreement to that effect. This is because agreements can still make provisions for the selling/providing of goods ‘as they stand’, but only if made subject to the supplier adequately informing the consumer of the true condition of the goods in question.