KSupreme Judicial Court of Massachusetts, 1942draftborradorunverifiedsin verificar

Swinton v. Whitinsville Savings Bank

311 Mass. 677, 42 N.E.2d 808 (1942)

A house sold with termites the seller knew about and never mentioned

In one lineEn una línea: A seller who knows of termite infestation and says nothing is not liable for bare nondisclosure; absent a duty to speak, caveat emptor applies.Un vendedor que sabe de termitas y no dice nada no responde por simple silencio; sin deber de hablar, rige caveat emptor.
RuleRegla: Mere nondisclosure of a material fact known to the seller and unknown to the buyer, with no false statement, half-truth, active concealment or special relationship, is not actionable; the rule of caveat emptor leaves the buyer to inspect.
Why this case is herePor qué está aquí este caso: Assigned Oct. 20 with R.2d §§ 159–164 and 169 and the Laidlaw discussion: bare nondisclosure is not misrepresentation at common law, however unfair; the modern exceptions in § 161 (half-truths, basic assumptions, fiduciary relations) are what the exam will test against these facts.
Procedural posturePostura procesal: Buyer sued the seller bank for damages for concealing termite infestation; the trial court sustained a demurrer and the Supreme Judicial Court affirmed.

Facts

The bank sold Swinton a house it knew was infested with termites, a fact not discoverable by ordinary inspection. The bank said nothing about it. Swinton discovered the infestation after the sale and spent money on repairs and treatment.

Procedural posture

Swinton sued for damages for fraudulent concealment; the court sustained the bank’s demurrer and the Supreme Judicial Court affirmed.

Issue

Whether a seller’s failure to disclose a known, material, latent defect is actionable fraud.

Holding

No. The declaration alleged no false statement, no half-truth and no act of concealment, only silence; the law imposed no duty to speak, and the buyer bore the risk.

Reasoning

The court reasoned that a duty to disclose every known defect would have no stopping point: the same rule would bind buyers who know facts raising the value of what they buy. Without a fiduciary relationship or an affirmative act, the parties deal at arm’s length and each may keep what he knows.

Rule (own words)

Silence is safe at common law; words, half-words and cover-ups are not. Check whether any exception creates a duty to speak before calling silence fraud.

What-ifs

The bank’s agent said the house had been treated for termites and was fine: false assertion; misrepresentation.
The bank filled the holes and painted the beams: active concealment; equivalent to an assertion.
A Texas home seller today: statutory disclosure notice required (Tex. Prop. Code § 5.008), so the result changes by statute.

Likely follow-upsRepreguntas probables

What would have made the bank liable?

A false statement (no termites), a half-truth (the wood is sound), active concealment (painting over damage), or a relationship of trust; today many states also impose statutory disclosure duties on home sellers.

How does R.2d § 161 change the analysis?

Nondisclosure counts as an assertion where disclosure is needed to correct a prior statement, to correct a mistake about a basic assumption when silence violates good faith and fair dealing, to correct a mistake about the writing, or where a relationship of trust exists; termites in a house arguably fit the basic-assumption category, so the case might come out differently today.

Mexican comparison?

The seller's silence about hidden defects is addressed by the saneamiento por vicios ocultos (CCF arts. 2142 ff.), a warranty rather than a fraud theory.

nondisclosure misrepresentation caveat emptor duty to disclose (R.2d § 161)

Compare withComparar con: Laidlaw v. Organ (applies), Vokes v. Arthur Murray, Inc. (contrasts)

AssignedAsignado: 2026-10-20

Read the public opinionLeer la opinión (texto público). SourceFuente: Own brief from the public opinion as excerpted in the casebook; verify quotations against the opinion..