I sold a car privately voetstoots. The buyer was told verbally of a water leak on the car and was given discount to repair the fault. He took the vehicle and it broke down on the same day. He returned the vehicle the next day and now expect all his money back. What are my options as the vehicle is not in the same condition as when I sold it to him. I only have a sale agreement that was signed by the buyer and seller. The transfer of ownership papers was not yet signed as I stay 450km from Pretoria where the vehicle was sold by my father. It would have been signed 4 days later as per sale agreement.
Good day. This is an info request to assist you better. Please continue on this thread.Please confirm:1. You do not sell cars for a living or extra income? This was your own car that you sold?2. The written agreement contains the 'voetstoots' clause3. You did not admit liability in any way.
I do not, it was my own car sold privately. It does contain the words "as is" and later on "voetstoots" and I did not admit any liability.
Did he pay you already?
Yes. But the buyer does not want to sign a transfer of ownership and wants his money back.
And you are currently in possession of the vehicle?
Yes, he returned it the next day. He told me that I must help him repair it just so I would take it back. I was willing to help him but the day after that he said he doesn't want it anymore...
1. How the voetstoots clause operates:In order to explain the working of the voetstoots clause, we need to distinguish between patent and latent defects. Patent defects is defects that is immediately visible, or visible after a thorough inspection of the item. Latent defects is defects that existed, but could not be seen so easily. It must be noted that we are talking about defects that existed when the agreement has been concluded and not defects that came into existence after the transaction has been concluded. Also, you should note that there is a difference between a defect that exists and a defect that manifests itself. For example, a smoke alarm can be defective before the conclusion of the sale, but the mistake only manifests itself if the thing does not go off.When an agreement is concluded voetstoots, it means that the seller does not take responsibility for any of the latent or patent defects that existed at the time that the transaction was concluded. This means that all risk passes to the seller as soon as he pays for the thing.A seller cannot claim voetstoots as a defence for latent defects if the seller knew of the defects and deliberately conceals the defect, so as to entice the buyer to buy. The burden of proof is, however, on the buyer to prove this. The buyer must, in other words, prove that the defects existed at the time of the sale, that the seller deliberately concealed it and that he did so because he knew the buyer was not going to buy, or were going to buy at a reduced price, if the defects were made known to him.Only if a buyer can prove this, can the seller be held liable for those defects.2. You have two things going for you here: The voetstoots clause itself and the fact that you told him that there is something wrong with the vehicle in that it leaks water. If you look at the above explanation, it is going to be hard for him to be able to argue that you hid the defect from him if you plain came out and told him about it. The inference being that he knew of the defect and accepted the vehicle with the defect. 3. I suggest you inform him of the above and let him know that he must come and fetch his vehicle.
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What bothers me is that I do not have any proof that I told him of the defect. It was verbal only. I was also advised that I should rather get a quote to repair the vehicle, repair it and then give him back what is left of the money. What is your opinion on this option?
Who suggested that?
I cannot see why you should do that, since I do not believe that he will get past the voetstoots clause. Your attorney probably thinks that the Consumer Protection $Act is applicable (it is not) and therefore, voetstoots does not apply (which it does).
Thanks for your help, I am basically finished now... What about the fact that I only verbally informed the buyer about the water leak? My word against his? And lastly the transfer of ownership papers was not signed. Does this have an effect?
None of the above has an effect. It is still a latent defect and he needs to prove that you hid the defect from him (in other words, that you knew about the defect) and that you did so with the intent to defraud him. How is he going to prove that you knew of the defect other than to testify that you told him that there is a problem?The fact that no papers has been signed does not matter. There is case law that state that registration of the vehicle is a result of the sale and not a condition for the sale to have effect. You need to have delivered the vehicle (which you did). The fact that is now with you is a problem, which will be solved by informing the buyer that you do not accept his repudiation of the agreement and that he should come and get his car.
L.LB, Civil and criminal litigation, contracts, labour and family law
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