Builders’ Liability in Negligence
This chapter is concerned first with the liability of the builder to a subsequent owner of a building. In such a case there is no contractual relationship between the parties and the basis of the builder’s liability under the common law is the tort of negligence. The liability of the builder in negligence may, in certain cases, also be of relevance to the first purchaser. Thus, where a defective house has been purchased from a developer, rather than the builder, and the developer then goes into liquidation, the purchaser’s only worthwhile cause of action will be against the builder. Under the common law this will have to be based on tortious negligence, since in such circumstances there will be no privity of contract between the purchaser and the builder. In the event of a purchase of a defective house from a vendor/builder who goes into liquidation, the purchaser’s only means of recovery will be against any subcontractor if he has been responsible for the defect. Again, under the common law such recovery will have to be based on the tort of negligence. It must also be remembered that, as we have seen in Chapter 1, the purchaser of a defective building will in any case rarely have an action against his vendor because of the doctrine of caveat emptor, and so he is forced to seek elsewhere for a remedy.
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