Voetstoots Clause In Lease Agreement

Rental contracts for immovable property used for residential purposes: [33] Article 21 of the rental agreement expressly provides that, before engaging in a discussion on the scope of protection afforded to a seller by a Voetstoots clause, it is first necessary to examine the distinction between latent defects and patent defects. Voetstoots clauses are widespread in written sales contracts and have often become the subject of suspicion. Many believe that these clauses allow one party with a stronger negotiating position to exploit and exploit the other weaker contracting party. Since the property is purchased “as planned”, many believe that the seller cannot be held responsible for defects that later appear in the foreground. This view is indeed false and a misinterpretation of the law. In the spirit of South African common law, any event that is beyond the control of the parties to an agreement, after the conclusion of which the performance of contractual obligations is rendered impossible, is dealt with by the doctrine of the superposition of impossibility. This principle applies to leases which exclude a force majeure clause and which may be used to suspend the obligations of the parties under the lease agreement, provided that the performance of the obligations is objectively made impossible as a result of an unforeseeable and unavoidable event. These events are called vis maior (“main force”) or casus fortuitous (“random event”). The force majeure clauses generally stipulate that, in the event of written notification to the other party, the corresponding obligation, such as the payment of rent, is suspended during the continuation of the event and that this party is released from any liability during this period. In the event that a rental agreement includes a force majeure clause, the specific conditions of the force majeure clause determine whether the tenant is entitled to a reduction in the rent to be paid or to a payment.

[4] The Applicants also argued in the alternative that the short-term lease should be rectified by the inclusion of the development contract in the lease agreement. For example, person X sells a mobile phone to person Y. Person X stipulates in the sales contract that the voetstoots mobile phone (or “as seen”) is sold. Person Y who purchased the mobile phone cannot return the mobile phone later and request a refund if it turns out that the phone was defective due to the Voetstoots clause that allowed the person to get out of the tacit warranty that the mobile phone was free of defects. A Voetstoots clause protects the seller from liability, as it is generally accepted that the buyer was aware or should have been aware of such a deficiency, but nevertheless continued to purchase the property. . . .