MORAL writers insist (a), that a vendor is bound, in foro conscientiæ, to acquaint a purchaser with the defects of the subject of the contract. Arguments of some force have, however, been advanced in favor of the contrary doctrine; and our law does not entirely coincide with this strict precept of morality(b).

If a person enter into a contract, with full knowledge of all the defects in the estate, the question cannot arise : scientia enim utrinque par pares facit contrahentes(c).

So if, at the time of the contract, the vendor himself was not aware of any defect in the estate, it seems that the purchaser must take the estate with all its faults, and cannot claim any compensation for them.

(a) Cic. dẹ Off. 3. 13; Grotius de Jure Belli ac Pacis, l. 2. c. 12. s. 9; Puffendorf de Jure Naturæ et Gentium, 1. 5. c. 3. s. 2; Puffendorf de Off. 1. 1. c. 15. s. 3; Valerius Maximus, l. 8. c. 11; et vide Deuteronomy xxv. 14; Paley's Moral Philosophy, vol. 1. b. 3. ch. 7. (b) Vide Infra, ch. 6.

(c) Grotius de Jure Belli ac Pacis, l. 2. c. 12. s. 9. 3; Puffendorf de Jure Naturæ et Gentium, l. 5. c. 3. s. 5.

And even if the purchaser was, at the time of the contract, ignorant of the defects, and the vendor was acquainted with them, and did not disclose them to the purchaser; yet, if they were patent, and could have been discovered by a vigilant man, no relief will be granted against the vendor.

The disclosure of even patent defects in the subject of a contract, may be allowed to be a moral duty; but it is what the civilians term a duty of imperfect obligation. Vigilantibus, non dormientibus jura subveniunt, is an ancient maxim of our law, and forms an insurmountable barrier against the claims of an improvident purchaser.

In this respect, equity follows the law. But it has been decided, that if a vendor during the treaty, industriously prevent the purchaser from seeing a defect which might otherwise have easily been discovered, he is not entitled to the extraordinary aid of a court of equity and it is conceived, that he could not even sustain an action against a purchaser for a breach of the contract.

And if the vendor know that there is a latent defect in his estate, which the purchaser could not, by any attention whatever, possibly discover, it is not clear that he is not bound to disclose his knowledge, although the estate be sold, expressly subject to all its faults(d).

By the civil law, vendors were bound to warrant both the title and estate against all defects, whether they were or were not conusant of them. To prevent the inconveniences which would have inevitably resulted from this general, doctrine, it was qualified by holding, that if the defects of the subject of the contract were evident, or the buyer might have known them by proper precaution, he could not obtain any relief against the vendor.

The rule of the civil law also was, "simplex commendatio non obligat." If the seller merely made use of those

(d) See post. ch. 6. s. 2.

expressions, which are usual to sellers, who praise at random the goods which they are desirous to sell, the buyer, who ought not to have relied upon such vague expressions, could not, upon this pretext, procure the sale to be dissolved(e).

The same rule prevails in our law(f), and has received a very lax construction in favor of vendors. It has been decided, that no relief lies against a vendor for having falsely affirmed, that a person bid a particular sum for the estate, although the vendee was thereby induced to purchase it, and was deceived in the value(g).

Neither can a purchaser obtain any relief against a vendor for false affirmation of value(h); it being deemed the purchaser's own folly to credit a nude assertion of that nature. Besides, value consists in judgment and estimation, in which many men differ. So, where a church lease was described in the particulars of sale, as being nearly of equal value with a freehold, and renewable every ten years, upon payment of a small fine, the purchaser was not allowed any abatement in his purchasemoney, although the fine was very considerable, and it was proved that the steward of the estate had remonstrated with the vendor, before the sale, upon his false description(i). And a statement in the particulars of an advowson, that an avoidance of the preferment was likely to occur soon, was held to be so vague and indefinite, that the Court could not take notice of it judicially; and

(e) 1 Dom. 85.

(f) Chandelor v. Lopus, Cro. Jac. 4.

(g) i Roll. Abr. 101. pl. 16. See 1 Sid. 146; Kinnaird v. Lord Dean, stated infra, n.; Dawes v. King, 1 Stark. 75.

(h) Harvey v. Young, Yelv. 20. See Duckenfield v. Whichcott, 2 Cha. Ca. 204; see Ekins v. Tresham, 1 Lev. 102; reported 1 Sid. 146, by the name of Leakins v. Clissel.

(i) Brown v. Fenton, Rolls, 23 June 1807, MS.; S. C. 14 Ves. jun.