Lesley Cowling
Buying yourself that coveted car, boat or string of pearls might seem a simple transaction: you pay the money, you get the goods. But unless you conduct business like a television drug deal (slide over the suitcase of money and I’ll throw you the cocaine), you may find yourself out of pocket.
What happens, for example, if you agree to buy a car, you pay the money, but the car gets stolen before you pick it up? It seems obvious that the deal would fall through, and you’d get your money back, right?
Wrong, actually. The law is not so clearly on the side of the consumer.
An advocate at the Johannesburg Bar explains that the ”risk” associated with any specific item passes to you as soon as you say: ”I’ll take it.” If it’s lost or stolen after you’ve agreed to buy, it becomes your responsibility – even if no money has yet changed hands. In fact you are still liable to pay.
This is because South African law is based on Roman Dutch law. This derives from the laws of the Roman empire, where transactions were of the order of one person buying a slave from another. If that slave ran away in the process of being handed over, it was the buyer who lost out.
But as with anything in law, the issue isn’t totally cut and dried and there are ways you can protect yourself.
If you agreed with the salesperson that you were only paying on condition the car was delivered to you in good working order, that would override the law. You would have to prove the agreement in court, of course, so something in writing would be good.
You cannot assume the deal would fall through if goods disappeared before you got them, nor can you assume the salesperson understands the deal in the same way as you do. So insist on a written agreement that risk only passes to you on delivery – if the seller refuses, go elsewhere.
Another complicating issue is negligence – the seller is under an obligation to take proper care of the goods from the time of the sale until the goods are placed in your hands. If you can prove the seller was negligent, for example, leaving a car unlocked and parked in a risky area or letting a customer borrow that pearl necklace, you would not have to pay for the lost goods.
Obviously, if you pay for a product up front, you carry the risk: the seller has your money and you have the burden of proving that he was negligent in losing the goods.
But if you don’t pay until the goods are in your hands, the salesperson would have to sue you for payment, incurring all the expense of legal advice and court costs for an uncertain outcome. Possession is, after all, nine-10ths of the law.
Hire-purchase agreements may provide some protection to car buyers, says the advocate, because a powerful third party is involved: the bank. As law is not simply about what’s in the books, but also about power, few dealers would want to take on such a big adversary.
However, hire purchase may not protect you in other situations, he says. For example, if you are unhappy about the car you have bought and take it back to the dealers, they may say that the deal is not with you but with the bank. And the bank may not be particularly concerned that your new car has turned into a rough ride.
Your best bet, says the advocate, is to bear in mind those old maxims: let the buyer beware, and a verbal contract is worth the paper it’s written on.