I am loath to make this post this as I do not want to be drawn into a long-winded lecture on the law of contract, something which could very easily happen. Also bear in mind that legal advice is normally worth what you paid for it. It is also not my intention to give a full and complete exposition on the law of contract and there will be numerous exceptions that I do not deal with. This should also not be construed as legal advice but simply an attempt at stating the basic position. The law pertaining to the private sale and purchase of goods is trite. I am focusing on a purchase agreement between private parties and not where dealers are involved although the basic principles also apply. The first point to make is that the risks to a buyer are well known and have been for a very long time. Even before Roman times but these risks has aptly found expression in the dictum "Caveat Emptor" - Let the Buyer Beware. Secondly, when you make an offer to purchase an advertised item and the seller accepts that offer then you have a valid agreement of sale and purchase. Even if it is not reduced to writing. A contract for immovable property is an exception and is required to be in writing. The basic requirement for a valid contract to arise is a "meeting of the minds" on all the essential aspects of the transaction namely the nature of the contract (to buy and sell), the purchase item (commodity) and the price. (There can be instances where there was no meeting of the minds and where there is no valid contract. I am not going to describe those.) A meeting of the minds can also be attained through misrepresentation. This is where things start to get complicated. One needs to distinguish between a misrepresentation as opposed to an implicit warranty in terms of the operation of law (ex lege). The reason for this distinction is because there are different remedies available to the buyer in the different circumstances. Lets first look at warranties. There are two types of warranties. The one mentioned above and warranties provided expressly by the seller (ex contractu) which could include, but is not limited to, a warranty that the item is suitable for the intended purpose of the buyer or giving a warranty that certain shortcomings/faults are not present. This is fairly straight-forward but the buyer will need to prove that an explicit warranty was given Something that could be problematic in the case of an oral agreement. So keep all your Whatsapps, SMSes and emails. In any purchase agreement there is a warranty against hidden or latent defects. This warranty is in place in terms of the operation of law which can be expressly excluded by a "voetstoots (as-is)" clause. One also needs to distinguish between patent defects and latent (or hidden) defects. A patent defect is one that is noticeable by a carefully observant person. It is the duty of the buyer to protect himself and carefully inspect the item. In the case of a patent defect the buyer may have no remedy (again an oversimplification). This requirement immediately poses a challenge when buying an item "remotely" and not being able to inspect it. I shall attempt to discuss the position later. A latent defect is a shortcoming in the purchase item, of a material nature, that impacts on the usability of the item and which was not known by the seller at the time of contracting nor was it easily observable. As stated there is an implicit warranty against hidden defects unless accompanied by a voetstoots clause. So let the seller beware in this instance. If you want to protect yourself against liability on the basis of this implicit warranty then make sure to include a voetstoots clause. If the seller was aware of the defect and did not disclose it to the buyer then a voetstoots clause cannot protect the seller as it is an intentional misrepresentation and the seller will be liable. a Voetstoots clause will also generally not protect the seller in the case of a misrepresentation relating to the item. A dealer is in a different position and the CPA applies as well. A voetstoots clause will not protect a dealer and would quite frankly only serve to dissuade potential buyers. As a matter of fact a dealer cannot use a voetstoots clause in terms of the CPA. This is an oversimplification of the position of dealers and I am not going to expand on this save to say that not even ignorance on the side of the dealer regarding a hidden defect will exclude liability. Generally there is a higher duty of care on a dealer. Lets look at misrepresentations. A misrepresentation in an untruthful statement/representation made made before or during contract negotiations which is of such a nature that it induces the buyer to enter into the contract. In practice the question is also asked if the misrepresentation was material but the basic test is whether the buyer was induced to enter into the contact. If the misrepresentation induced the buyer to enter into the contract, the buyer can choose to rescind the contract. Even if the misrepresentation was made in error or where the seller was unaware of the untruthfulness or negligent in the making of the misrepresentation. When the buyer decides to rescind the contract, the parties are released from their obligations in terms of the contract, and both can insist on, and are entitled to, the return of the purchase item and the money respectively. The buyer however has the option to proceed with the agreement. The buyer will lose his/her right to hand back the item if it is not done within a reasonable time. To complicate matters further one also needs to distinguish between "puffing" (the seller praising the attributes of the item/sales talk e.g. saying the bike is "brand new" and has only done 1000 kilometers) on the one hand and an attempt to mislead on the other. There is a fine distinction which will normally be inferred from the facts of the specific case but can be quite difficult to draw. Where a misrepresentation was made intentionally, the buyer is also entitled to claim damages as the seller has committed a delict against the buyer. The seller could potentially also be criminally charged with fraud but this is very unlikely and will only be entertained in extreme cases of fraud. The basic premise from a SAPS/prosecution point-of-view is that it is a civil matter and the buyer should exercise his rights and use the civil remedies available to him or her. One should also not be allowed to use the State to settle their private scores or act as a personal debt collector. As far as an agent is concerned, the basic principle is that the seller attracts liability through the conduct of his agent. There is a duty on an agent to disclose to the buyer that he is acting on behalf of the seller. Again there are many more complexities than these two simple sentences. So where does that leave the buyer who has a duty to inspect the purchase item and protect him/herself. Where that is not possible it would be ideal to ask another person to inspect the item on your behalf, bearing in mind that the "inspector" may also make a mistake or overlook a problem opening a whole new potential can of worms. If no inspection is possible, it is imperative that the buyer asks as many pertinent questions as possible, get more and better photo's if required and be very clear about his/her expectations. Do your due diligence such as checking the ratings etc. of the seller, the price of new items and the going rate of similar second hand items. Do research on the suitability of the item for your specific needs and lastly always remember "caveat emptor". As far as the seller is concerned it is my personal view that there may actually be a higher requirement of a duty of care/disclosure in the case where the item is sold "remotely". If not on a legal basis, then at least on a moral or reputational basis. Try to take decent photo's of the item making sure that marks, damage or issues etc. are clearly visible on the photos and disclose those. Especially if it is clearly visible and obvious. Be careful not to make statements that cannot be substantiated or be perceived as a misrepresentation. Always include an "as-is" statement unless you are prepared to provide a warranty against hidden defects. Most importantly remember that a good reputation is everything. It cannot be bought with all the money in the world, once lost. Obviously this applies to both parties. I probably managed to raise more questions than provide answers at this point. For instance, how do you prove that the seller knew about a latent defect and intentionally withheld that from the buyer? How do you prove that the seller made a misrepresentation in bad faith. How do you prove that a warranty was given? It is important to realise from the above, that there are many issues that can be raised and would need to be dealt with in litigation. Often it is a question of the one person's word against the other's and here the objectively provable facts and circumstantial evidence may serve the court to arrive at a finding. The facts are unique to each case which makes it even more complicated. The point is that litigation is seldom the answer unless large potential losses are at stake. Also bear in mind that the basic principle is that he that alleges must prove. I am not trying to dissuade anyone to litigate but rather to alert them to some of the realities of litigation. Often it is a question of how much justice you can afford. Another issue is how much time and energy you have to expend on the issue, as litigation takes very long with court enrollment dates far in the future in most jurisdictions. Fortunately all of this only comes into play when the deal goes sour, which is very much the exception rather than the rule, when looking at the transactions taking place on the forum and the number of good ratings given and received. On a side comment, Adam actually may have a point about the Second Hand Goods Act of 2006. Bicycles and Bicycle parts are expressly listed in Schedule 1 to the Act. This further goes to show that the Google School of Law can be a hit and miss affair at the best of times.
