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Vanderbilt Law Review

First Page

541

Abstract

While caveat emptor is still ostensibly the law applicable to sales of realty in every common law jurisdiction, it no longer effectively protects the builder-vendor. In many instances he is now being held liable for damages or rescission for failure to meet what is in result, if not in fact, an implied warranty of good quality and fitness for purpose when he sells a newly constructed home. The expansions of previously settled doctrine by the courts to reach this result have occurred in the areas of implied warranty itself, and in the areas of express warranty, marketable title, fraud,and negligence. It is the purpose of this article first, to delineate the form and outer boundaries of this new development, by an analysis of the cases and statutes which have forwarded it, and second, to determine whether this development is a desirable one. Further, this study records what seems to the author an interesting and rather dramatic illustration of an important characteristic of the common law itself: an instance of the courts' filling what they felt was a gap in the law's protection by the utilization of dynamic and flexible legal concepts when the more archaic and immutable ones failed them.

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