Swinton v. Whitinsville Sav. Bank

42 N.E.2d 808 (Mass. 1942)



The rule of nonliability for bare nondisclosure is followed in Massachusetts.


The vendor to the vendee a house that was infested with termites, knowing the internal destruction that the insects had created. The vendee filed suit, alleging that the vendor had falsely and fraudulently concealed the true condition of the home. The trial court sustained the vendor's demurrer to the vendee's declaration. The case was appealed to the Supreme Judicial Court of Massachusetts.


Should the tort claim prosper?




The court determined that the vendee had failed to allege any false statement, misrepresentation, or half-truth uttered by the vendor that would have been tantamount to a falsehood. There was no intimation that the vendor prevented the vendee from acquiring information as to the condition of the house. There was nothing to show a fiduciary relationship between the parties or that the vendee stood in a position of confidence toward or dependence upon the vendor, so the court refused to impose liability for bare nondisclosure. It further held that a buyer of a dwelling house cannot maintain an action of tort against the seller in which he relies solely upon the facts that the seller, knowing the building to be infested with termites and the internal destruction they were creating therein, failed to reveal their presence to him.

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