Question received
“Can I claim back my
money? I ordered hay for my horses in November 2013 after seeing an
advertisement on the internet. The man was very polite over the phone and
convinced me to pay the full R3 000 in advance. He explained that the hay
was fresh and the only reason for selling was to clear his storeroom. When the
man came to deliver the hay I realised that the hay was OLD, MOULDY AND STALE -
I have photos to prove it - and refused to accept the goods. He left with the
bad hay and promised to be back at a later stage with better quality. I am
still waiting!! He no longer answers my calls but I’ve managed to get his
address. Should I approach him?”
Reply:
You and this man
(let’s call him Mr X) entered into a verbal contract over the phone the moment
the two of you agreed that the hay would be delivered in exchange for
R3 000 – to be paid up front.
It is an underlying
requirement that the parties to a contract act in good faith and fair dealing.
As you have possibly learned, this is sadly not always the case.
The truth is that Mr
X has been in breach of contract for more than a year. The type of breach here
is called positive malperformance.
-
Positive
malperformance happens where the supplier delivers the ordered goods on time
but where the quality of the goods is improper/ incomplete/ defective;
-
The receiving
party subsequently has a right to reject the improper/ incomplete or defective
goods;
-
What generally
happens next is that the receiving (innocent) party would demand:
a) That the supplier replace defective goods with
proper/ complete goods in an acceptable order;
OR
b) A cancellation if the defect/ breach is material/
very serious.
Seeing as stale/
mouldy hay can cause your horses infection and/ or hay induced-colic, the
defect appears to be material in this instance!
Van der Merwe et
al (Contract, General Principles 1 ed 1993, at 255) describes a
very serious breach as follows (also quoted in the case of Singh v McCarthy Motors):
“The test for seriousness has been expressed in a variety of ways, for
example that the breach must go to the root of the contract, must affect a
vital part or term of the contract, or must relate to a material or
essential term of the contract, or that there must have been a substantial
failure to perform. It has been said that
the question whether a breach would justify cancellation is a matter of
judicial discretion. In more general
terms the test can be expressed as whether the breach is so serious that it
would not be reasonable to expect that the creditor should retain the defective
performance and be satisfied with damages to supplement the malperformance.”
Can you claim back your money?
Firstly, well done on
tracking down Mr X’s address! This is invaluable, not necessarily for approaching
Mr X (in fact, we advise against it) but for delivering the relevant legal
documents to demand fresh hay or cancellation (repayment of your R3 000).
The good news is that
you are able to pursue the matter via the Small Claims Court as your claim is
less than R15 000. The aforementioned court is free of charge and does not
allow for legal representation. Proceedings are informal and you will be able
to rely on text messages and informal means of communication.
The first step is to
put your claim in writing by sending Mr X a Small Claims Court section 29
letter of demand in terms of which you request fresh hay as agreed upon within
14 days, failing which you will cancel the contract and demand repayment. If
you are a Legal Hero policyholder, please contact us and open a new file for
assistance as soon as possible.
It is very important
to note that a civil claim prescribes (becomes invalid) after 3 years since
last date of payment/ acknowledgement of the debt provided no legal action has
been instituted during that time. This means that your civil claim against Mr X
will prescribe in November 2016. After
November 2016, Mr X will be able to raise the special defence of prescription
in court.
Lastly, based on the
information provided to us, it appears that this sale was a once-off. Should Mr
X, however, sell hay on a regular basis during the ordinary course of business,
Mr X would be bound by the rules of the Consumer Protection Act (as a
supplier). In terms of the Consumer Protection Act, a consumer may request
repayment, a repair or replacement of defective goods. One could also lodge a
consumer complaint via
complaints@thencc.org.za.
Wishing you a
fantastic day,
Legal Hero.
www.legalhero.co.za
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