Sarah buys furniture from Mark who promised her that the
furniture is of good quality. However, he doesn’t notify her about problems
with the furniture. Later, Sarah discovers that some of the chairs she bought have
faulty joints, meaning they can’t be used properly. This is what’s called a
latent defect and Sarah will be able to claim from Mark for the furniture not
fulfilling its purpose.
A patent defect or a
A patent defect is when there’s a problem with a purchased
item but it was clearly visible and obvious to the buyer when the contract was
signed. If the furniture that Sarah bought had a patent defect, such as a chair
leg missing, it would be assumed that she knew about it and the law would not
NOTE: A defect is
something that makes the product less useful or completely useless. A product
not looking as good as you thought is not a defect. A piece of furniture with a
stain on it can still be used normally. If the product has broken or missing
parts, meaning it can’t be used properly, it’s a defect.
If the product you bought has a defect affecting its
usability and purpose, then the seller is liable and you as the buyer can claim
from them. You should also take into account if the contract had a “voetstoots”
clause, meaning that you are buying a product based on its appearance or “as
is”. If this is the case the seller would not be held accountable for any
defects with the product, latent or patent.
What can I get back
from the seller?
If the product you bought has a latent defect you can get a
price reduction or a refund for the price you paid. A price reduction is the
difference between the price you paid and the true value of the product. A full
refund includes the price you paid, interest, maintenance costs and the cost of
receiving the product. A full refund would also mean that you need to return
the product that you got under the contract.
If a defect has caused you harm or damaged your property,
for instance, you could possibly also claim this amount as compensation from the
Who is a trader and
who is a seller?
It’s important to keep in mind that there’s a difference
between someone who is a trader and a seller. A trader is someone who makes a
living from selling products, whereas a seller is an ordinary person like Mark
in the example above. A trader who specialises in particular products and boasts
having a specialized knowledge is held to a higher standard than an ordinary
Sales talk or latent
It’s normal for sellers or traders to do the best to sell
their product. This usually means “sales talk” or boasting about the products
value and usefulness. They are allowed to do this, however, if they make
statements about the product that turn out to be false, such as claiming the
product can do something that it actually can’t, the law will be in your favour
and protect you in the same way as a latent defect.
Before you agree to buy anything from a seller or a trader
make sure you inspect the product first and make note of any defects there
might be. If you neglect to inspect the product it could be more difficult for
you to get compensation from the seller if there is a problem in the future.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
- “What you should know about Contracts”. 2009. The Western
Cape Office of the Consumer Protector. Department of Economic Development and
Tourism. Accessed from: https://www.westerncape.gov.za/