Gawie le Roux on Agreements of Sale

    Practical application: The voetstoots clause

    Background

    • More than 80% of the properties sold in South Africa are pre-owned properties,
    • representing transactions between private individuals,
    • which are not subject to the provisions of the CPA, meaning that
    • most sellers are still entitled to the protection provided by the voetstootsclause.

    Unfortunately many sellers are being deprived of their common law right to rely on this much-needed protection against latent defects by badly drafted estate agents’ agreements and the so-called “property condition report” attached to them. The voetstoots clause does not exist in its own right. It is an age-old common law "antidote" the sole purpose of which is to counter the effect of the common law warranty upon a seller against latent defects in the property sold.

    Bad drafting

    Agreements of sale are drafted by property practitioners or even by laymen every time immovable property changes hands. But, to judge from the large number of court cases concerning agreements of sale that serve before the high courts in South Africa every year, there are some remarkable shortcomings and defects in the agreements drafted for both small and large transactions, by both professional and lay persons.

    Content & Aim

    The content of the manual is based on the common law principles applicable to the voetstoots clause as developed and laid down by our courts in recent and most important court cases.

    The aim of the manual is to equip the people who regularly draft, interpret and execute agreements of sale with the necessary theoretical and practical knowledge to enable them to draft better agreements of sale.