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Facts: P buys house from D. Before the sale, P visited the house several
times. D never mentioned that they had had termite infestation in the past. P saw
something in the floor that looked like termite damage, and when asked whether it
was, D answered that it was water damage. The contract for the sale of the house
was made pursuant to a termite inspection paid for by D. The house passed the
termite inspection, and P bought the house. Afterwards, it was made apparent to P
that the house had had termite infestations, the damages caused would cost $5k to
fix (the floor). P brought suit against D that sellers made misrepresentations
concerning the termite damage (which was dismissed), and failed to disclose this
information (for which D was granted summary judgment). P appealed.
Issue : (1) Whether seller has a duty to disclose a material fact to the buyer.
Yes. (2) Whether the history of termite infestation and damages was a material
fact. TBD.
Holding: Reversed and remanded to decide whether termite history was a material
fact.
Reasoning:
(1) Where the seller knows of facts materially affecting the value or desirability
of the property which are known or accessible only to him and also knows that such
facts are not know to, or within the reach of the diligent attention and
observation of the buyer, the seller is under a duty to disclose them to the
buyer,
(2) A matter is material if it is one to which a reasonable person would attach
importance in determining his choice of action in the transaction in question.
Unless reasonable minds could not differ, materiality is a factual matter which
must be determined by a trier of facts. The termite damage in this case may or
may not be material. The buyers should be allowed to present their case to the
jury.
RULE:
• Silence as to a material fact does not in itself constitute fraud, unless there
is a duty to disclose.
○ A confidential relationship may impose a duty to disclose
§ Special relationships of trust or confidence or an agreement, express
or implied
□ In this context, a failure to disclose can constitute a
misrepresentation
○ Duty to disclose may also arise when it is necessary to correct a previous
statement or false impression
Notes