SCHMIDT v DWYER 1959 (3) SA 896 (C)

*
1959 (3) SA p896

Citation 1959 (3) SA 896 (C)

Court Cape Provincial Division

Judge De Villiers JP and Van Wyk J

Heard August 5, 1957

Judgment August 23, 1957

Annotations Link to Case Annotations

Flynote : Sleutelwoorde
Sale - Of farm - Warranty - What amounts to - Statement that there was a specified
approximate number of vines on the farm - Such statement amounting to both a
warranty and a representation. - D Not affected by voetstoots clause.
Headnote : Kopnota

A written deed of sale of a farm, after describing the property and its approximate
extent, added 'the property includes approximately 120,000 vines planted thereon'.
Another clause provided 'the property is sold as it stands and the seller shall not be held
responsible for any defects therein whether patent or latent'. In fact there were only
67,000 vines E planted on the farm. The purchaser claimed damages (a) for breach of
warranty or alternatively (b) by reason of the misrepresentation. In an exception to the
declaration,

Held , that ex facie the deed of sale the statement therein regarding the number of vines
on the property amounted to a warranty.

Held , further, as the voetstoots clause had no bearing on this F statement, that such
clause did not debar the plaintiff from relying upon the representation.
Case Information

Exception to a declaration. The nature of the pleadings appears from the reasons for
judgment.

M. E. Theron, Q.C. , for the excipient (defendant).

G. van R. Muller, Q.C. , for the respondent (plaintiff).

G Cur. adv. vult.

Postea (August 23rd).

Judgment

VAN WYK, J.: In 1955, according to plaintiff's declaration, the H respondent and excipient
 (herein referred to as plaintiff and defendant respectively) entered into a written deed of
sale which, after setting out the names of the contracting parties, contains the following
clause:
'Property: (a) The farm Wupperthal, situated in the district of Somerset West, measuring approximately 87
morgen as more fully defined in paras. 1, 2 and 3 of the deed of transfer 14464 dated 7th September, 1954,
registered in favour of the seller and subject to all conditions mentioned or referred to therein. The property
includes approximately 120,000 vines planted thereon.
1959 (3) SA p897

VAN WYK J
(b) Certain movables located on the farm as detailed in the Schedule annexed thereto marked 'A'.'

This Schedule 'A' includes about 40 items, such as 10,000 tobacco reeds, 100,000
cabbage plants, pumps, vehicles, etc. The deed of sale then proceeds to deal with the
purchase price, transfer, possession, brokerage and concludes with the following
paragraph:
A 'Special conditions: 1. The property is sold as it stands and the seller shall not be held responsible for any
defects therein whether partent or latent.
2. The purchaser agrees to accept title as held by the seller who does not desire to benefit by any excess nor
to be liable for any deficiency in the extent thereof.
3. The seller warrants:
(a) That the property hereby sold has the sole rights to the water B from the Hill Dam (Main Dam) and that there
are no servitudes in respect of such water.

(b) That the farm has a servitude right on the water from a spring on adjoining property as shown on diagram
9788/49 and as detailed in the seller's title deeds.

(c) That there are no detrimental road servitudes registered against the farm other than those reflected in the
seller's title deeds, and shown on diagram 9788/49.'

CPlaintiff has instituted an action for damages against defendant, and the declaration,
after setting out the terms of the aforesaid deed of sale, contains the following
allegations:

Plaintiff's declaration (paras. 5 to 10):

5. In and by the express terms of the aforesaid deed of sale, defendant warranted to plaintiff that there were
approximately 120,000 vines D planted on the farm. The said warranty was a material term of the contract
between the parties.
6. (a) Furthermore, prior to the conclusion of the contract of sale and during the negotiations between the
parties leading up to the sale, defendant personally and through her duly authorised agent, one T. C. Bosch, an
estate agent; acting on her behalf, verbally represented to plaintiff on more than one occasion that there were
approximately 120,000 vines planted on the farm.
(b) The said representation was a material one and was made with the E intention and object of inducing
plaintiff to purchase the farm.
(c) Plaintiff relied upon the said representation as being true and was induced thereby to purchase the farm, as
he did.
7. After plaintiff took transfer of the farm he discovered that there were not approximately 120,000 vines
planted on the farm, but that in fact at all material times there were and are no more than 67,000 vines
planted on the farm.
8. In the premises aforestated, the representation referred to in para. F 6 above was false; and plaintiff avers
that such misrepresentation was made knowingly or without belief in its truth, or recklessly without caring
whether it be true or false, or negligently.
9. (a) The value of the said farm with only 67,000 vines planted thereon is £6,254 less than the value it would
have had with approximately 120,000 vines planted thereon.
(b) Alternatively, plaintiff avers that the value of the farm with only 67,000 vines planted thereon is £6,254
less than the purchase price of £23,000.
G 10. (a) By reason of defendant's breach of warranty referred to in para. 5 above, plaintiff has suffered
damages in a sum of £6,254 for which defendant is liable in law.
(b) Alternatively, plaintiff avers that by reason of the misrepresentation referred to in paras. 6, 7 and 8 above,
he has suffered damages in a sum of £6,254 for which defendant is liable in law.

To this declaration the defendant has excepted as follows:

H ' Exceptions to plaintiff's declaration:
 1. Defendant excepts to plaintiff's declaration, in so far as it is based on a breach of the warranty regarding the
number of vines on the farm which is alleged in para. 5 thereof, as being bad in law and disclosing no cause of
action or as being vague and embarrassing, more particularly in that, whereas it is clear from the said para. 5
that plaintiff relies for the existence of the said warranty on the express terms of the deed of sale entered into
between the parties:
(a) it appears ex facie the said deed itself (annexure 'A' to the declaration)

1959 (3) SA p898

VAN WYK J
that the statement therein regarding the number of vines on the property does not amount to a warranty; or,

alternatively
(b) the express terms of the said deed are not such as to justify a finding that the said statement constituted a
warranty.

Wherefore defendant prays that plaintiff's declaration, in so far as it is based on a breach of the warranty
alleged in para. 5 thereof, may be A set aside with costs.
2. Defendant furthermore excepts to plaintiff's declaration, is so far as it is based upon an alleged verbal
misrepresentation regarding the number of vines on the farm made negligently (see para. 8 of the said
declaration) on the ground:
(a) that it is bad in law and discloses no cause of action, inasmuch as the said misrepresentation cannot be proved
or relied upon by plaintiff, by reason of the provisions of condition No. 1 of the B 'special conditions' set out in
the deed of sale aforementioned; or

alternatively,
(b) that it is vague and embarrassing in that the said misrepresentation is in conflict or at variance with the
provisions of the said condition 1 and no, or insufficient, facts are pleaded justifying plaintiff's reliance upon the
said misrepresentation.'

C There is also an application to strike out, but inasmuch as it involves the same legal
issues as the exception, it is not necessary, in view of the conclusion arrived at in this
matter, to deal therewith separately.

In support of the first exception, Mr. Theron , who appeared for the defendant,
contended that the statement in the deed of sale in regard to the number of vines on
this farm in question, was intended merely to D constitute part of the description of the
property, or alternatively, to constitute a record of a representation to enable the buyer
to claim relief based on misrepresentation, should the representation be found to be
false. He argued that inasmuch as the sale of the property was ad corpus , the
statement in the aforesaid 'property' clause in regard to E the area of the land sold, could
not be regarded as a warranty, (he relies on cases such as Bell v Ramsay , 1929 NPD
265), and, so he argues, as the statement in regard to the number of vines appears in
the same clause it should similarly not be regarded as a warranty. He pointed out that
the 'special condition' referred to above, contains certain specific warranties and
submitted that if it was intended that F there should be a warranty in regard to the
number of vines, this should have been inserted in the said 'special conditions' clause.
Mr. Theron also contended that the use of the word 'approximately' supported his
contention that the parties did not regard the aforesaid statement as constituting a term
of their contract. Finally he contended that, G inasmuch as the property was sold, in
terms of the aforesaid 'special conditions', 'as it stands', there was no room for any
warranties other than the specific warranties contained in the said clause.

The legal principles to be applied in deciding whether a statement constitutes a warranty

or not are clearly stated in Naude v Harrison , 1925 CPD 84 at p. 90:
H 'We have to ascertain whether both parties intended to contract that the thing sold should be as represented,
whether the seller intended to bind himself in law that the thing would comply with what he had stated, or at
any rate so acted as to estop himself from denying such intention. It is not sufficient that the purchaser relied
on the statement - that may be enough for a dictum , hut not for a promissum - it must also be shown that the
seller contracted that the statement would be made good.'
The general rule is that where a vendor makes a representation or an assertion of a
positive and material fact in regard to the quality
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VAN WYK J

or quantity of the thing sold such conduct on his part amounts to a definite promise or
warranty, for a breach of which he will be liable. (See Corbett v Harris , 1914 CPD 535 at
p. 543.) The primary object of a deed of sale is to record the terms of a contract
between the A parties, and it follows that any statement in such a document prima facie
constitutes a term of the contract unless it appears from the contract itself or other
admissible evidence that the parties did not so intend. It seems obvious that the number
of vines on the farm sold must have been one of the important factors in determining
the purchase price of the property, and I fail to see why the parties should have included
B the statement in regard thereto merely to describe the property. The submission that
the parties may have inserted it to record a representation appears to me to be
unrealistic and fanciful. I shall assume for the purposes of this judgment that the
statement in regard to the area of the farm did not constitute a warranty, but this has
hardly C any bearing on the question whether the statement in regard to the number of
vines did. The parties thought it necessary to include a provision in the 'special
conditions' to the effect that no warranty was given in regard to the area of land, and
the fact that no similar provision was inserted in regard to the number of vines is
significant. I fail to see why the fact that the 'special conditions' contain D specific
warranties should lead to the conclusion that no other warranties were intended. In this
regard one must bear in mind that annexure 'A' to the aforesaid 'property' clause
admittedly contains warranties in regard to the movables. The mere fact that the
qualifying word 'approximately' is used in the statement relating to the number of E vines
does not in my opinion prevent it from operating as a warranty. (See de Villiers v
Nichollas & Co. , 24 S.C. 208; 17 C.T.R. 275 at p. 278; Mackeurtan, Sale of Goods , 3rd
ed. at p. 168.)

Mr. Theron submitted that the shortfall of vines alleged in the declaration is in the nature
of a defect, and that a warranty in regard F thereto would be inconsistent with the
voetstoots clause contained in the special conditions. For this submission he relied on a
number of decisions including Mouton v Wessels , 1951 (3) SA 147 (T) , where MILLIN,
J., at p. 150 said that:
'once you give an express warranty it is no longer appropriate to speak of a sale being voetstoots; it would be
a contradiction in terms'.

G In my opinion this statement cannot possibly apply where the warranty is contained in
the very same document as the voetstoots clause. I see no reason why a deed of sale
should not contain a voetstoots clause as well as warranties. In any event, a voetstoots
clause relates to defects (see Dutch Reformed Church Council v Crocker , 1953 (4) SA
53 (C) at H p. 59, and Cockcroft v Baxter , 1955 (4) SA 93 (C) ), and the shortfall of
vines alleged in the declaration cannot in my view be regarded as a defect. As to what is
meant by defects, see Wessels Law of Contract , 2nd ed. Chap. XXXI; Norman on Sale ,
Chap. XV; Wright v Pandell , 1949 (2) SA 279 (C) at p. 284.

The conclusion to which I come is that ex facie the deed of sale the statement therein
regarding the number of vines on the property amounts to a warranty, and the first
exception accordingly fails.
1959 (3) SA p900

VAN WYK J

In support of his second exception Mr. Theron relied upon the arguments advanced in
the first exception in regard to the effect of the voetstoots clause, and submitted that
the voetstoots clause debarred the plaintiff from relying upon the representation referred
to in the said A exception. As already stated my view is that the voetstoots clause has no
bearing on the statement in regard to the number of vines and I think Mr. Theron's
submission is fully answered by the following remarks of THOMPSON, J., in Cockcroft v
Baxter, supra at p. 98:
'The problem is, in my view, essentially one of determining the intention of the parties as expressed in their
contract. There however B appears to me to be no sufficient warrant for expanding the ambit of a mere
agreement to buy voetstoots (without more) beyond its recognised sphere of relieving the vendor from liability
for latent defects to the extent of precluding the buyer from relying on any misrepresentation whatever as to
the condition of the article sold.
If a vendor wishes to guard himself against all liability for all representations as well as for all defects he
should, in my opinion, incorporate into the sale an appropriate condition in that behalf.'

C (See also Wright v Pandell, supra at p. 284.)

The result is that the exceptions and application to strike out are dismissed with costs.

DE VILLIERS, J.P., concurred.

DExcipient's Attorneys: W. E. Moore & Son . Respondent's Attorneys: Dempers and van
Ryneveld.