Law question (regarding negligence/guarantee)
Discussion
I'm currently undertaking a masters in surveying.
In my latest assignment I have to comment on the following:
Major Tom owned a property which was divided into two flats, and, prior to advertising the ground floor flat for sale, he instructed Wet & Dry Eradication Ltd to inspect the ground floor flat and prepare a timber preservation report, which he could show to potential purchasers.
The report clearly stated that there was no evidence of dry rot at the time of inspection, but that a precautionary spray of fungicide had been made on the timbers and that these were guaranteed against dry rot infestation for 30 years.
Six months after the date of the report, Major Tom sold the ground floor flat to Margaret and also the first floor flat to David. Before each sale Major Tom gave both Margaret and David a copy of the timber preservation report.
It is now two years since the inspection and dry rot has appeared in both flats. Margaret and David have taken expert advice and have been told that the original report by Wet & Dry Eradication Ltd was negligent.
Wet & Dry Eradication Ltd admits that the report was prepared by an unsupervised trainee and was, therefore, negligently prepared, but it denies liability on the ground that the report was addressed to Major Tom and not to Margaret or David.
Advise Margaret and David whether each has a valid legal claim against Wet & Dry Eradication Ltd.
I have stated the logical comments regarding negligence. Donoghue v Stevenson (1932). Bolam v Friern Barnet Hospital (1957). Scott v London & St Katherine Dock Co. (1865)
Where I'm stumped is with relation to their claims that the guarantee is not transferable? I assumed that there was a duty of care as an 'expert' under B v FBH, to which they've already admitted liability, but I don't understand why the guarantee would not be transferrable or does this relate back to contract law?
If anyone could spare a couple of minutes to explain that would be great. I'm not looking for answers, I want to understand it, but purely so direction/advice. Thank you!
In my latest assignment I have to comment on the following:
Major Tom owned a property which was divided into two flats, and, prior to advertising the ground floor flat for sale, he instructed Wet & Dry Eradication Ltd to inspect the ground floor flat and prepare a timber preservation report, which he could show to potential purchasers.
The report clearly stated that there was no evidence of dry rot at the time of inspection, but that a precautionary spray of fungicide had been made on the timbers and that these were guaranteed against dry rot infestation for 30 years.
Six months after the date of the report, Major Tom sold the ground floor flat to Margaret and also the first floor flat to David. Before each sale Major Tom gave both Margaret and David a copy of the timber preservation report.
It is now two years since the inspection and dry rot has appeared in both flats. Margaret and David have taken expert advice and have been told that the original report by Wet & Dry Eradication Ltd was negligent.
Wet & Dry Eradication Ltd admits that the report was prepared by an unsupervised trainee and was, therefore, negligently prepared, but it denies liability on the ground that the report was addressed to Major Tom and not to Margaret or David.
Advise Margaret and David whether each has a valid legal claim against Wet & Dry Eradication Ltd.
I have stated the logical comments regarding negligence. Donoghue v Stevenson (1932). Bolam v Friern Barnet Hospital (1957). Scott v London & St Katherine Dock Co. (1865)
Where I'm stumped is with relation to their claims that the guarantee is not transferable? I assumed that there was a duty of care as an 'expert' under B v FBH, to which they've already admitted liability, but I don't understand why the guarantee would not be transferrable or does this relate back to contract law?
If anyone could spare a couple of minutes to explain that would be great. I'm not looking for answers, I want to understand it, but purely so direction/advice. Thank you!
The guarantee is personal, and not transferable.
The report appears to have been undertaken by an independent thrid party, not-conencted with the company the did the works and provided the guarantee. Are any parties save for the person selling allowed to rely upon the report? The man upstairs, definitely not, the report doesn't extend to him. The woman downstairs, probably not either. She should have found her own report. The company making the report will not have been aware of who might wish to rely upon it. The seller is not guranteeing the work; simply showing the report and confirming that work had previosuly been done.
Disclaimer: I have not read all those cases through. This does not constitute legal advice.
The report appears to have been undertaken by an independent thrid party, not-conencted with the company the did the works and provided the guarantee. Are any parties save for the person selling allowed to rely upon the report? The man upstairs, definitely not, the report doesn't extend to him. The woman downstairs, probably not either. She should have found her own report. The company making the report will not have been aware of who might wish to rely upon it. The seller is not guranteeing the work; simply showing the report and confirming that work had previosuly been done.
Disclaimer: I have not read all those cases through. This does not constitute legal advice.
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