Voetstoots Clause in Sale Agreement

When buying or selling a property in South Africa, you may come across a term called the “voetstoots clause” in the sale agreement. This clause has significant implications for both the buyer and seller and understanding its consequences is crucial for ensuring a smooth and fair transaction.

The voetstoots clause is a provision in the sale agreement that states the property is sold “as is” or “with all faults”. In other words, the seller is not liable for any defects or problems that may exist in the property at the time of sale. The buyer takes the property in its current condition, and the seller is not responsible for making any repairs or rectifying any issues.

The term “voetstoots” comes from the Dutch phrase “met die hand op die voet”, which translates to “with the hand on the foot”. It refers to the practice of a seller putting his foot on an item of sale to indicate that he is selling it “as is”, and the buyer is purchasing it with all its faults.

It is worth noting that the voetstoots clause does not apply to latent defects. These are defects that are not easily visible or apparent at the time of sale, and the seller is still liable for these even if the voetstoots clause is included in the sale agreement. Latent defects are defects that would make the property uninhabitable, unsafe, or unsuitable for the purpose for which it was intended.

As a buyer, it is essential to conduct a thorough inspection of the property before finalizing the sale. It is also a good idea to include an inspection contingency in the sale agreement to protect yourself from latent defects that may not be visible during the inspection. The inspection contingency allows you to cancel the sale if any latent defects are discovered.

As a seller, it is crucial to disclose all known defects to the buyer before finalizing the sale. Failure to disclose known defects may result in legal action against the seller. If the seller is unsure about any possible defects, it is wise to seek professional advice before finalizing the sale.

In conclusion, the voetstoots clause is a critical aspect of any property sale in South Africa. Both buyers and sellers need to understand its implications and take steps to protect their interests during the transaction. Buyers need to conduct a thorough inspection and include an inspection contingency in the sale agreement, while sellers must disclose all known defects to the buyer. By doing so, both parties can ensure a fair and smooth transaction.