Van Praagh v. Everidgc.

(q) Tamplin v. James, 15 Ch. D. 21.5.

(r) See above, p. 19, n. (v).

(s) Fry, Sp. Perfee. Sec. 277, 752.

(t) See above, pp. 4, 6, and n. (x).

Mistake as to price.

Mistake as to the property or price goes to the rout of the contract.

(u) Above,pp. 668,670,673,676. It is further submitted that, according to the case of Tamplin v. James, 15 Ch. D. 215, the fact that the parties' minds were not in truth at one, was not of itself alone a sufficient ground for the defendant to resist specific performance, the mistake having been on his side only; and that, in the absence of hardship, he would have been equally estopped in equity from alleging his mistake; see below, pp. 691 - 693.

(x) See Phillips v. Bistolli, 2 B. & C. 511, 512; Benjamin on Sale, 43, 2nd ed.

Mistake as to quality.

Warranty of quality.

With regard to mistakes in what may be termed the quality of land sold, as for example, whether it be fit for growing corn, grazing cattle, or for building, or whether a house or other building be in good repair or well drained, the reader must bear in mind the following distinctions: - The rule is caveat emptor. The purchaser should inspect and make inquiry concerning the property which he is buying (c). If he omit this precaution, he buys at his own risk, and cannot complain of defects in the quality of the thing, unless they be not discoverable by inspection and materially interfere with the enjoyment promised by the contract (d), or by any representation which induced the contract, or be fraudulently concealed (e). In the case of the sale of land, defects which are in one sense defects of quality, as interfering with the physical enjoyment of the land sold, may involve a breach of the contract because they are inconsistent with the discharge of the vendor's obligation of showing a good title. Thus the existence of a right of way, not discoverable by inspection and interfering materially with the enjoyment of the property sold, is a good ground of objection to the title (f). But in the absence of fraud, a defect of quality, not amounting to a breach of the obligation to show a good title, is no ground of objection on the purchaser's part, unless the vendor expressly or impliedly warranted or promised that the property sold should have the quality, in which it is deficient. And no warranty is implied by the mere sale of land that it is fit for any particular purpose (g). For example, if one sell a house which is out of repair, or ill-drained or infested with vermin or otherwise unfit for human habitation, without warranting or representing that it is in good repair, well-drained or fit for habitation, the purchaser has no legal or equitable cause of complaint (h). This doctrine applies not only to defects discoverable by inspection or inquiry but also to latent defects of quality. Where these are unknown to the vendor, and do not materially interfere with the enjoyment promised by the contract, or any representation which induced the contract, they are no ground for the purchaser to avoid the contract or resist its specific performance (i). And the same rule applies at law, although the latent defect be known to the vendor. Thus if one sell his house situate in a street of a disreputable character, the purchaser cannot avoid the contract at law, unless the vendor sold the house as a residence for a respectable family or otherwise promised or represented that it was fit for that purpose (k). A fortiori, if land or a house be sold with all its faults (l) or with all risks of error in the description (m), the purchaser cannot reject it on account of a latent defect of quality, of which the vendor was aware. In equity, however, the rule has been suggested that a latent defect of quality, which is not discoverable by any inspection or inquiry that a prudent purchaser might reasonably be expected to make, and is known to and not disclosed by the vendor, is a good ground for refusing to grant specific performance at the vendor's suit (n). But it is submitted that this rule is too broadly stated, and is properly subject to the qualification that the defect must be such as will materially interfere with the enjoyment promised by the contract or the vendor's representation, or the concealment must be fraudulent. Thus in Lucas v. James (o), where the rule is stated, a gentleman entered into negotiations for taking a lease of a house, the lessor being aware that he wanted it for his own residence. He broke off the negotiations on the ground that the street, in which the house was situated, was of so disreputable a character that the house was unfit for the purpose of a gentleman's private residence. The lessor brought a suit for specific performance, alleging that a contract had been concluded. Wigram, V.-C, dismissed the bill with costs on the ground that no contract had been formed: but incidentally he suggested the rule as above mentioned. But it appears that in that case the lessor was clearly promising a house fit for the required purpose. If one sell a house situate next door to a house known to the vendor but not generally known to be a disorderly house, without promising that the house sold is fit for a gentleman's residence, and without making any promise or representation at all as to the character of the neighbourhood or the street, why should specific performance be refused at the vendor's suit? Lord St. Leonards maintained that the vendor's silence as to a known latent defect of quality could hardly be distinguished from his active concealment of a defect which would otherwise be patent (p). But it is held at law that this is not so (q). The active concealment alone is a fraud; mere silence is no breach of any legal duty, unless the vendor promised some quality incompatible with the existence of the defect, or were under a particular obligation to disclose defects, such as arises in the case of a contract of insurance, which is a contract uberrimę fidei (r). And it is stated by Sir Edward Fry in his treatise on Specific Performance that mere silence as regards a material fact, which one party is not under an obligation to disclose to the other, cannot be a ground for rescission of a contract or a defence to specific performance (s). And this rule has been lately followed in equity, specific performance having been decreed at suit of one, who kept silence as to a latent defect, which was known to him, but which he had not warranted or represented not to exist (t). So also it is considered that mere silence on the purchaser's part as to some fact known to him alone and enhancing the value of the property sold (such as the existence of valuable minerals) is no ground in equity for the vendor to avoid or resist specific performance of the contract (u). At the same time, it must be remembered that in granting or refusing the remedy of specific performance, the Court may take into consideration circumstances which would be of no account at law and would not affect the question of the rescission of the contract (x). Thus the Court may refuse specific performance at suit of a party whose conduct has been wanting in good faith or fairness (x), or against a party on whom the specific performance of the contract would inflict a great hardship (y); and it seems that on these grounds the Court may possibly decline to grant specific performance at suit of either vendor or purchaser, who has concealed a fact known to him and material to the value of the property sold, notwithstanding that such concealment may not amount to positive fraud (z). In a recent case, however, where a vendor kept silence in a manner which the Court considered to be unfair, that was not allowed to stand in the way of his obtaining the remedy of specific performance, though it was made a ground for depriving him of costs (a).