Swinton v. Whitinsville Savings Bank
42 N.E.2d 808 (1942)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
In an arm's-length real estate transaction, a seller is not liable for fraudulent concealment for merely failing to disclose a known, non-apparent defect, absent a fiduciary duty, false statement, or active concealment.
Facts:
- On or about September 12, 1938, the defendant sold a house to the plaintiff for use as a family dwelling.
- At the time of the sale, the house was infested with termites, which were causing internal destruction.
- The defendant knew about the termite infestation.
- The termite condition was a non-apparent defect that the plaintiff could not readily observe upon a reasonable inspection.
- The plaintiff was unaware of the termites at the time of the purchase.
- Around August 30, 1940, nearly two years after the purchase, the plaintiff discovered the termites and incurred great expense for repairs and pest control.
Procedural Posture:
- The plaintiff sued the defendant in a trial court.
- The defendant filed a demurrer, arguing that even if the plaintiff's factual allegations were true, they did not constitute a valid legal claim for relief.
- The trial court sustained the demurrer, dismissing the plaintiff's lawsuit.
- The plaintiff appealed the trial court's order to the Supreme Judicial Court of Massachusetts.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a seller's mere failure to disclose a known, non-apparent termite infestation in a house constitute fraudulent concealment, making the seller liable to the buyer in an arm's-length transaction?
Opinions:
Majority - Qua, J.
No. A seller's mere failure to disclose a known, non-apparent defect does not constitute fraudulent concealment. The court reasoned that this was a business deal conducted at arm's length, with no fiduciary relationship between the parties. The defendant made no false statements, uttered no half-truths, and did not prevent the plaintiff from inspecting the property. The court held that liability for 'bare nondisclosure' would be an idealistic and unworkable standard, creating a universal duty for every seller to disclose any non-apparent defect and, conversely, for every buyer to disclose any non-apparent virtue. While acknowledging the 'appeal to the moral sense' in this specific case involving termites, the court concluded that the law cannot create special rules for different types of defects and must adhere to the established principle that mere silence does not amount to fraud.
Analysis:
This case is a landmark example of the traditional common law doctrine of caveat emptor ('let the buyer beware') in real estate transactions. It establishes a strong precedent that, absent affirmative misrepresentation or a special duty, the seller has no obligation to volunteer information about latent defects. This decision places the burden of discovery squarely on the buyer, emphasizing the importance of due diligence and professional inspections. While many modern jurisdictions have moved away from this harsh rule by enacting statutes requiring seller disclosures, this case remains a foundational text for understanding the traditional baseline of liability from which modern consumer protection laws have evolved.
Unlock the full brief for Swinton v. Whitinsville Savings Bank