Spring 2009 Case B: Kelly

¶ … Spring 2009 Case B: Kelly and Michael Borden v Neil Fox

Should the Bordens be allowed to rescind the contract? If so, on what legal grounds (what rule of law or case)?

According to South Carolina law, the grounds for rescinding a contract are as follows. First, the rescinded contract must have been for unlawful purposes "for causes not apparent upon its face," and both of the involved parties must not have been equally at fault for the unlawful action. While a contract is simply not valid if it is for an illegal purpose (such as commissioning a murder) the law also allows that illegalities may only come to light later on, and thus the contract may be rescinded. This is what the Bordens allege has transpired: they were illegally sold an infested home and property, and much as the contract stipulates that the house cannot be infested with termites, the same is true for a house infested with snakes, given that the contract requires general disclosure of all pertinent and serious detrimental information about the house. For example, if the house were infested with mice or roaches, the fact that these creatures do not happen to be termites does not give Fox a legal leg to stand on. The other instance a contract can be rescinded is "when the public interest will be prejudiced" by permitting the contract to stand, which is not the case here, as no alleged damage to the public, only to the Bordens, has been done.

The question thus arises: was Fox's house indeed infested with snakes and did he know this and fail to disclose this? The court stated this was not the case, as only a single snake was officially reported. The Bordens did not apparently have a home inspector come to examine the property before purchasing it, clearly an error upon their part. If they did, the results are not stated in the court records, nor did Fox obtain an assessor before the sale apparently (although the Bordens would have been wise to have gotten an independent appraiser, regardless).

Thus, given the lack of expert and objective supporting testimony, the court seems to dismiss the Borden's statement out-of-hand that a witness saw Fox's home was filled with snakes, although the neighbor's comments that not many snakes have been seen from Fox's immaculate property seems suspicious, given that they can only give a cursory examination at the property from outside. After all how many snakes can be seen from a distance?

It should be noted that when it comes to notions of housing, "Johnson vs. Davis, ended the notion 'buyer beware'…when a court ruled that it's a duty of a seller to disclose defects on a home...The ruling made it a duty for owners to disclose what they knew or should have known about defects that would affect the value of the property" (Kilpa 2007). This case involved 'Chinese drywall' that was unsound that the sellers had installed before selling the home. There was no proof that the owners knew for certain it was unsound, but given the cost of the material, it was decided that they should have reasonably known that it was.