Date: Tue, 7 Oct 2008 02:43

From: Michael Furmston

Subject: Duty to Warn

I think the Washington case imposed liability in contract.

It is usually assumed that there is no contract liability on such facts in English law though it would I think equally be taken for granted that the seller was liable in a sale of goods case of a similar kind.

Michael Furmston

Date: Mon, 6 Oct 2008 14:00:06 -0600
Subject: Re: ODG: Duty to Warn

There are several Canadian cases like this.

But I think Jason's point was to raise the issue as to why they are correct.  A purchaser can arrange for and require disclosure by contract. (Some provinces have Disclosure requirements.)  The issue is why tort law should protect individuals who clearly could have and should protected themselves by contract. This was the Supreme Court of Canada's point in the Design Services case. The subs could have joined with the contractor in submitting a bid, did not, and then sought to use tort to make up for their contractual blunder. The SCC said "no dice". So, if a purchaser buys a house without requiring disclosure of defects, or without inspecting, should tort law say "don't worry", we will do it for you?  Despite years of tort taking over the contractual relation field, Design Services indicates that the tide in Canada may be turning. This I think is a positive development (unless there is a fraudulent concealment).

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