Van der Westhuizen v Arnold

• Jurisdiction: South Africa

Van der Westhuizen v Arnold
2002 (6) SA 453 (SCA)

2002 (6) SA p453

Citation	2002 (6) SA 453 (SCA)
Case No	414/2000
Court	Supreme Court of Appeal
Judge	Marais JA, Heher AJA and Lewis AJA
Heard	February 22, 2002
Judgment	August 29, 2002
Counsel	J S Saner for the appellant.; A Ferreira for the respondent.

Flynote : Sleutelwoorde F

Contract — Interpretation — Particular situations — Permissible use of background or surrounding circumstances — Sale agreement containing clause to effect that 'no warranty whatsoever has been or is given to me by seller or his agent(s)' — Agreement drawn up by seller — Purchaser aware purchased vehicle in need of repair — Vehicle subsequently G possessed by owner — Seller averring exclusion clause covering implied warranty against eviction — One Judge finding that surrounding circumstances not showing that words 'no warranty whatsoever' included implied warranty against eviction — Phrase, given its generality and absence of any evidence that question of title H considered or in contemplation, not excluding obligation of seller to give undisturbed possession of merx to buyer — Provision not excluding liability for breach of warranty against eviction — Another Judge finding that words 'no warranty whatsoever has been or is given to me by seller' of widest connotation — Of critical importance are words 'has been or is given to me by seller' — Ordinary meaning that seller neither gave nor had given any guarantees or warranties I whatsoever — Although apt to exclude all expressly or tacitly given warranties whatever their content, warranty which arises ex lege and owes nothing to consensus of parties not warranty given by seller — Chosen words not apt to exclude such warranty. J

2002 (6) SA p454

Contract — Terms of — Exemption clause — Interpretation of — Semble: Not appearing to be any clear authority for A general principle that exemption clauses should be construed differently from other provisions in contract — That not meaning that courts are not, or should not be, wary of contractual exclusions, since they deprive parties of rights that they would otherwise have at common law — In absence of legislation regulating unfair contract terms, and B where provision not offending public policy or considerations of good faith, careful construction of contract itself should ensure protection of party whose rights are limited but also give effect to principle that other party should be able to protect him- or herself against liability insofar as it is legally permissible — Very fact that exclusion clause limits or ousts common law rights should make court consider with great care meaning of clause, especially if it is very C general in its application — This requiring consideration of background circumstances and resort to surrounding circumstances if there is any doubt as to application of exclusion.

Headnote : Kopnota

The respondent had signed an agreement of sale for a motor vehicle which provided that 'no warranty whatsoever has been or is D given to me by the seller or his agent(s)'. The agreement had been drawn up by the appellant, the seller. The respondent had been aware when he purchased the vehicle that it was in need of repair. The discussions between the appellant and the respondent, prior to the conclusion of the contract, had related to the condition of the E vehicle. However, subsequent to his taking possession of the vehicle, a bank claimed ownership of the vehicle. To avoid the bank's claim, he paid the bank the amount outstanding to it. He then claimed that amount from the appellant, basing his claim on the implied warranty against eviction. The appellant raised the exclusion clause in defence of the claim. F

Held (per Lewis AJA), that the surrounding circumstances - what passed between the parties, their negotiations and their conduct - did not show that the words 'no warranty whatsoever' had included the implied warranty against eviction. Although the phrase had to be regarded at first blush as a complete catch-all, saving the seller from any liability that might have arisen by operation of law, or by virtue of representations or warranties, it could not, given its G generality, and the absence of any evidence that the question of title had been considered or in contemplation, have excluded the most fundamental obligation of the seller - to give undisturbed possession of the merx to the buyer. The only inference to be drawn from the circumstances was that the respondent had not intended or even contemplated that he might be deprived of possession by the true owner, and yet have no recourse to the appellant. The evidence did not show H that the appellant had any such liability in mind either. (Paragraphs [34] and [35] at 467I/J - 468D.)

Held, further, that, in the circumstances, the provision in the document that the appellant had given no warranties whatsoever did not exclude his liability for breach of the warranty against eviction. This did not mean that the words at issue were superfluous: they referred also to express warranties which would have I related to the condition of the car. (Paragraph [36] at 468D/E - F.)

Held, further, that there did not appear to be any clear authority for a general principle that exemption clauses should be construed differently from other provisions in a contract. But that did not mean that courts were not, or should not be, wary of contractual exclusions, since they deprived parties of rights that they would otherwise have had at common law. In the absence J

2002 (6) SA p455

of legislation regulating unfair contract terms, and where a provision did not offend A public policy or considerations of good faith, a careful construction of the contract itself should ensure the protection of the party whose rights had been limited, but also give effect to the principle that the other party should be able to protect herself or himself against liability insofar as it was legally permissible. The very fact, however, that an exclusion clause limited or ousted common law rights should make a court consider with great care the meaning of the clause, B especially if it was very general in its application. This required a consideration of the background circumstances and a resort to surrounding circumstances if there was any doubt as to the application of the exclusion. (Paragraph [40] at 469D/E - G/H.)

Held (per Marais JA), that the words 'no warranty whatsoever has been or is given to me by the seller or his agent(s)' were of the widest connotation, but of critical importance C were the words 'has been or is given to me by the seller or his agent(s)'. Their ordinary meaning was that the appellant (or his agent(s)) neither gave nor had given any guarantees or warranties whatsoever. They were certainly apt to have excluded all expressly given warranties whatever their content. Although the word 'whatsoever' would have covered both expressly given and tacitly given warranties, a warranty which arose ex lege and owed D nothing to the consensus of the parties was another matter altogether. It was not a warranty which was given (either expressly or tacitly) by the seller or his agent(s). The chosen words were not apt to exclude such a warranty. Plainer language than that which appellant had chosen would have been necessary to exclude effectively such a warranty. (Paragraph [43] at 470A/B - D/E.) E

The decision in the Cape Provincial Division in Arnold v Van der Westhuizen confirmed.

Cases Considered

Annotations

Reported cases

Alpha Trust (Edms) Bpk v Van der Watt 1975 (3) SA 734 (A): referred to F

Botha v Swanepoel 2002 (4) SA 577 (T): referred to

Brisley v Drotsky 2002 (4) SA 1 (SCA): considered

Cinema City (Pty) Ltd v Morgenstern Family Estates (Pty) Ltd 1980 (1) SA 796 (A): referred to

Coopers & Lybrand v Bryant 1995 (3) SA 761 (A): dictum at 768A - E applied G

Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A): considered

Ditcher v Denison 11 Moore PC 325: considered

Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman 1997 (4) SA 302 (A): considered

Elgin Brown & Hamer (Pty) Ltd v Industrial Machinery Suppliers (Pty) Ltd 1993 (3) SA 424 (A): referred to H

Ellison's Electrical Engineers Ltd v Barclay 1970 (1) SA 158 (RA): considered

Essa v Divaris 1947 (1) SA 753 (A): referred to

Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A): referred to

Mastlite (Pty) Ltd v Stavracopolous 1978 (3) SA 296 (T): considered

Pangbourne Properties Ltd v Gill & Ramsden (Pty) Ltd 1996 (1) SA 1182 (A): referred to I

Pick 'n Pay Retailers (Pty) Ltd t/a Hypermarkets v Dednam 1984 (4) SA 673 (O): referred to

Richter v Bloemfontein Town Council 1922 AD 57: considered

Sun Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A): referred to

Van Pletsen v Henning 1913 AD 82 at 99: considered J

2002 (6) SA p456

Vrystaat Motors v Henry Blignaut (Edms) Bpk 1996 (2) SA 448 (A): referred to A

Wellworths Bazaar Ltd v Chandlers Ltd & Another 1947 (2) SA 37 (A): considered.

Case Information

Appeal from a decision in the Cape Provincial Division (Hlophe JP and Jacobs AJ). The facts appear from the judgment of Heher AJA. B

J S Saner for the appellant.

A Ferreira for the respondent.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: C

Cairns (Edms) Bpk v Playden & Kie Bpk 1948 (3) SA 99 (A) at 123 - 4

Crispett & Candy Co Ltd v Michaelis and Michaelis 1947 (4) SA 521 (A) at 543

Gericke v Sack 1978 (1) SA 821 (A) at 827D - E

Grey v Pearson (1857) 10 ER 1215 at 1234

Haviland Estates (Pty) Ltd v McMaster 1969 (2) SA 312 (A) at 336E - G D

Kalil v Standard Bank of SA Ltd 1967 (4) SA 550 (A) at 556D

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