You bought a used car, it has defects and the seller didn't disclose this — what are your rights?
"If you buy a car from a private seller, only the common law will assist — you can't rely on the Consumer Protection Act (CPA) for help," said Roy Bregman of Bregman Moodley Attorneys.
However, if you buy from a reputable and official used-car dealer, the CPA can offer some protection.
When you buy something, there is an implied warrantee (contained in the CPA) that the thing sold is free from any defects.
"When you buy something, there is an implied warranty (contained in the CPA) that the thing sold is free from any defects," said Bregman. This warranty is in addition to any other implied warranty imposed by the common law or any other public regulation, as well as any express warranty or condition that the consumer has in respect of the goods. It is valid for a period of six months, calculated from the date of delivery of the car to the consumer; during this period, the consumer may return the car without penalty — and at the supplier's risk and expense — if it's defective.
When you rely on the implied warranty of quality when returning the car, you have the election as to whether the supplier must repair or replace the car, or whether the supplier should merely refund you the price paid for the car.
"It is, however, possible that one can contract out of this implied warranty, by inserting a term into the contract that says that the sale is 'voetstoots' — that you buy the goods 'as is', warts and all, and cannot rely on the implied right to defect-free goods and complain later, if you find certain defects in the goods," Bregman warned.
Car dealers think that they can get out of their obligations under the CPA merely by getting the buyer to sign a contract containing a voetstoots clause. This is wrong.
However, he added: "Car dealers think that they can get out of their obligations under the CPA merely by getting the buyer to sign a contract containing a voetstoots clause. This is wrong."
The only way that dealers can get past the implied warranty is by advising the consumer that the car is being offered in a certain condition, and point out the obvious and not-so-obvious defects — and this should be explained in specific detail, pointed our Bregman. If the buyer accepts this, he or she must "expressly agree" to accept the goods.
Only if the buyer "knowingly acted in a manner consistent with accepting goods in 'a less-than-ideal condition', would the implied warranty of quality fall away."