Fraud by Silence

Does a party to contract have a duty to disclose to the other party all the material fact he or she knows about the subject of the contract? The original common law position on this issue was caveat emptor (let the buyer beware). The seller could remain silent without fear of being found guilty of fraud. Only actual statements by the seller could serve as a basis for fraud. The duty therefore was placed on buyers to ask the right questions of the seller, forcing the seller to make statements about the subject of the sale.

Many courts today, however, recognize that caveat emptor often produced unfair results. Some buyers simply do not know enough to ask the right questions about the subject of the sale, so many courts are recognizing a limited duty to disclose material facts on the part of the seller. Generally this duty is limited to material facts that the buyer could not have discovered by reasonable inspection of the subject of the sale.

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