Date: Tue, 7 Oct 2008 10:20

From: Martin Hogg

Subject: Duty to warn

The question Lewis poses - "why tort law should protect individuals who clearly could have and should protected themselves by contract" - made me think of what protection contract usually affords to the purchaser of a house.

In Scotland, those purchasing a new home from a builder will usually benefit from a ten year contractual guarantee in respect of the property by virtue of a guarantee scheme operated by the National House Building Council (NHBC). In the case of private purchases between individuals, it is standard practice for contracts for the purchase of houses to contain a number of clauses relating to the quality of the home. So, a clause will be included stating that, so far as the Seller is aware, (a) the Property is not affected by wet rot, dry rot, rising damp, woodworm or other infestation, or significant levels of contamination, and (b) the Property was not affected by flooding during the period of [5/10/20] years prior to the date of entry. This, of course, is not an especially easy clause for a buyer to activate, as it requires the buyer to show knowledge by the seller of the matters stated, which will not be easy. In areas where coal mining has been prevalent, the seller may also be required to provide a coal mining search in order to demonstrate that no disused mines lie under the property, and, if the property is served by a private drainage system, documentation indicating that the system is of a satisfactory quality. So, in Scotland, contract takes care of some of the matters which one might otherwise try to argue fell within a tortious/delictual duty of care. However, it is obvious from this summary that not all latent dangers/problems which may affect a home are covered by common contractual clauses.  

Of course, the benefits of contractual liability would not assist a party to whom ownership of a property was transferred without a prior contract, e.g. someone to whom ownership was transferred by way of gift or testamentary bequest.

Martin Hogg
Edinburgh Law School

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The University of Edinburgh is a charitable body, registered in Scotland, with registration number SC005336.

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