Voetstoots Clause

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Although the term 'voetstoots' is Dutch, its origin goes way back to the Classical Roman Law period (circa 250 A.D.)

Under Classical Roman Law, the Aediles Curules, were magistrates who controlled the trade in the marketplace.

These magistrates had the powers to make laws.

One of their laws was to make a seller of livestock liable for diseases (latent defects) in livestock sold by him, whether the seller knew about the disease or not.

But, the seller could negotiate himself out of this liability by selling the livestock 'as is'.

This principle was introduced to the Roman Dutch Law system and it was called 'voetstoots', meaning literally "with the shove of the foot" and it still applies today under South African law.

This is how it works:

If the seller knows of the invisible (latent) defect, he must disclose it to the purchaser. If not, the seller would be guilty of fraud and be liable to the purchaser for damages.

To protect himself against liability for latent defects of which he is not aware at the time of the sale, the seller can sell it voetstoots. Then he will not be liable for such hidden or latent defects, but only if he was not aware of it when the goods were sold.

A seller is not liable for a visible (patent) defect in the goods sold. It is the duty of the purchaser to inspect the goods before he buys it and to make sure that it has no visible (patent) defects, otherwise the purchaser would be taken to have accepted the visible (patent) defects in the goods.

The remedies available to a purchaser, if there are latent defects and provided voetstoots does not apply, are called the Aedilitian remedies being the Actio Quanti Minoris and the Actio Redhibitoria.

Under the Actio Quanti Minoris, the purchaser is limited to claim a price reduction which would be equal to the difference between the value of the goods and the purchase price. (Usually it is the amount required to repair the defect).

Under the Actio Redhibitoria, the purchaser is limited to a right to claim repayment of the purchase price plus interest, but against the return of the goods.

The Actio Quanti Minoris applies, where the purchaser would have bought the goods, even if he had known about the defect, but at a reduced price.

The Actio Redhibitoria applies, where the purchaser would never have bought the goods, had he known about it or where the defect renders the goods unfit for the purpose for it was purchased.

Remedies under the Aedilitian actions can get complicated and it is recommended that you consult an attorney if in doubt.

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Author: 3%.Com Properties

Submitted 27 Nov 18 / Views 889