‘Voetstoots’ is one of those legal terms many South Africans recognise, but few fully understand until something goes wrong. It often appears in property and second-hand sale contracts, and, in simple terms, it means you’re selling or buying something ‘as is’.In doing so, it shifts much of the risk from seller to buyer.
But what this means in practice, and what both parties need to do before signing, is where things can get complicated.
Clientèle Legal explains what buyers and sellers should consider before concluding a voetstoots agreement:
1. Check whether a contract is actually voetstoots
Not all buy/sell contracts are automatically concluded on a voetstoots basis; the clause must be clearly stated. If it’s included, the buyer accepts the item or property with all defects, except if the seller has knowingly concealed them.
2. Understand what ‘as is’ really means
A voetstoots clause doesn’t give sellers free rein to hide problems. Sellers are still legally required to disclose the defects they’re aware of. If a seller conceals an issue or misrepresents the condition of a property or vehicle, they can still be held liable.For buyers, however, proving this after the fact can be difficult.
3. Identify and record defects upfront
Visible issues, such as damp walls in a home or scratches on a car, are considered ‘patent’ defects. These should be noted during inspections and recorded in the contract. Hidden issues, like structural damage or engine faults, are ‘latent’ defects. Sellersshould disclose these if known, and buyers should ask direct questions and ensure that the answers are documented and attached to the contract.
4. Do the necessary checks before signing
In property transactions, this includes reviewing compliance certificates for electrical, plumbing, solar, gas, and structural work, as well as having approved building plans. In vehicle sales, it may involve service histories and roadworthy certificates. AsClientèle Legal, we always encourage buyers to insist on an independent inspection before signing. If you’re unsure what to look out for or what your rights are going into that process, that’s exactly where our 24/7 legal assistance comes in.
5. Put everything in writing
Verbal assurances don’t override a written contract. If a seller promises to fix a defect, make sure it’s included as a condition, in writing. If a buyer’s offer depends on financing or an inspection, ensure these conditions are clearly stated. Any changesmust be signed by both parties to avoid disputes later.
6. Be aware of your obligations if you change your mind
Once signed, a contract is legally binding. Cancelling after all conditions are met can result in significant costs, including agent commissions and, potentially, legal costs. In this case legal support shouldn’t feel out of reach. There are limited exceptions,such as when conditions are not met despite reasonable effort. An example could be if a seller cannot secure finance after signing an offer to purchase on a house.
7. Apply the same caution beyond property
Voetstoots clauses can also apply to second-hand car sales, online marketplaces, and even some lease agreements. The same principles apply. Inspect thoroughly, ask questions, and keep records. If a deal feels rushed or unclear, pause before committing.
“Checking the details and seeking legal guidance can mean the difference between a smooth transaction and a costly mistake. It’s also important to know that cost should not limit your access to professional legal services,” says a Clientèle Legal spokesperson.
