Consumers often opt to purchase second-hand goods in order to save money or because they merely stumbled upon a bargain. Despite the possible bargain, buying second-hand goods can be risky because they may contain defects, and the consumer’s recourse in such an event can be severely limited. This concern relating to defects is considerably increased when buying high-value second-hand goods where latent defects can cost a lot of money to repair. This often leaves the consumer in a position where they will be spending significant amounts of money repairing the defects whilst still paying off the purchase.
The biggest limitation to the consumer’s right to recourse when buying pre-owned goods is the inclusion of the so-called voetstoots clause which is often included in verbal or written sale agreements. These clauses are often referred to as “as is” clauses and that literally means that the consumer is buying the product as it stands, with all latent and patent defects included. The seller can then not be held liable for defects, under the common law, thus leaving the consumer without a remedy.
This conventional method of trade, however, has been dramatically altered. The new clause makes provisions and provides protection with respect of second-hand goods sold by a merchant who is rendering goods or services in the ordinary course of their business. This will also include most sellers who are not private vendors, making sales on a once-off basis. This protection is afforded to consumers purchasing both new and second-hand goods by the CPA.
Section 55 of the CPA sets clear standards to which goods sold by suppliers must comply. This section sets out the following criteria for the selling and purchase of goods:
- Goods must be reasonably suitable for the purpose for which they are generally intended.
- Goods must be of a good quality, in a good working order and free of any defects.
- Goods must be useable and durable for a reasonable period of time, having regard to the use to which they would normally be put to, and with regard to any other relevant circumstances.
The CPA, under Section 56, further goes on to establish an implied warranty according to which consumers have certain solutions if the above standards are not met. Consumers may, according to this implied warranty, return such defective goods for repair, refund, or replacement. This warranty is valid for a period of 6 months from the date of purchase.
It is thus clear that the traditional voetstoots clause which was valid under common law no longer protects sellers against liability for faulty goods. This new rule does not completely nullify the voetstoots term of trade. A voetstoots clause which specifically states what the condition of the item being sold is and which lists all the defects which are present will be valid in terms of the CPA if the consumer then expressly accepts it. This is the position since the consumer would not be prejudiced to make a purchase as they will be aware of the defects and thus, make an informed decision. It is very important to note that neither the standards as set out in Section 55, nor the warranty contained in Section 56 can be excluded from a sales agreement. This ensures that the consumer is always protected.
Consumers considering to buy a high-value, second-hand item should therefore rather buy such items from dealerships, as opposed to buying from a private person who is entering into a once-off sale. Voetstoots clauses between private persons entering into a sale agreement will, however, still be valid in the case of wilfully expressed defects.
- Consumer Protection Act 68 of 2008
- Advisory Note 1: Consumer Goods and Service Ombud
- Consumer Protection Guide for Lawyers: Law Society of South Africa
- Right to Return Goods in Terms of Section 56 of the CPA: SEESA