n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Manufacture, sell and be liable for latent defects : : case comments

Volume 21, Issue 4
  • ISSN : 1015-0099
  • E-ISSN: 1996-2185



As the seller is obliged to deliver the thing sold without any defects, the purchaser's remedies may include a claim for damages if the seller was fraudulent, or was a manufacturer or dealer, or gave an express warranty at the conclusion of the contract against the existence of such a defect (JTR Gibson 8 ed (2003) by Coenraad Visser (gen ed), JT Pretorius, Robert Sharrock & Marlize van Jaarsveld at 133 and 140 ff). If the seller is either a manufacturer or else a dealer who publicly professes to have expert skill and knowledge concerning the thing sold, he is presumed to be aware of latent defect in the articles that he manufactures or sells (idem at 143). His liability does not depend on whether he was aware of the latent defect. If the property is latently defective, he faces liability ex empto for consequential damages (ibid). His liability, as a naturale of the sale contract, can be excluded by the contractants in a voetstoots clause, if he did not intentionally conceal the latent defects to induce the purchaser to conclude the contract (idem at 144).

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