The Duties of Non‐Occupiers in Respect of Dangerous Premises

Published date01 July 1942
Date01 July 1942
AuthorGlanville Williams
DOIhttp://doi.org/10.1111/j.1468-2230.1941.tb02809.x
I94
MODERN
LAW REVIEW
July,
1942
THE DUTIES
OF
NON-OCCUPIERS IN
RESPECT
OF
DANGEROUS PREMISES
T has long been established that the occupier of immovable
property is under a certain duty of care with regard to it,
and also that
a
non-occupier (e.g. a landlord) may be liable
to persons outside the premises in an action of nuisance. The
question here to be considered is this: when and to what extent
are non-occupiers under a duty towards persons upon the premises
in respect
of
the fitness and safety of those premises?
It
will be
found that in practice this question subdivides into two. First,
what is the duty of a lessor or vendor of premises? And second,
what is the duty
of
one who has contracted to build or repair or
fit
premises
or
fixtures? These questions will be taken in turn.
I
(A)
THE
DUTY
OF
A
LESSOR
OR
VENDOR
OF
PREMISES
Before determining the extent of the duty of a lessor or
vendor to third parties it is necessary to determine the extent of
his duty to the lessee or purchaser. The rules on this subject are
often stated in rather a sweeping and uncritical fashion, and it
is proposed here to examine the cases somewhat carefully.
For our purposes it is not necessary to
go
back farther than
the decision in
Smith
v.
Marrable
(1843).l
There, the plaintiff
had agreed to lease to the defendant a furnished house. It turned
out that the house was infested with bugs, and the defendant
quitted it. The plaintiff brought an action for the rent due after
the tenant had gone out of possession, and failed. Lord Abinger,
C.B.,
in his judgment confined himself expressly to leases of
furnished houses, holding that there was an implied condition
that such houses should be habitable. Parke,
B.,
also held that
there was this implied condition, but did not confine his state-
ment of the rule to furnished houses
;
he approved and followed
earlier cases
at
nisi
prius2
where a similar rule had been applied
in leases of unfurnished houses, However,
a
short time after-
wards, in the case of
Sutton
v.
Temple,a
Parke, B., concurred with
his brother judges in regarding his judgment in
Smith
v.
Mawable
as supportable only if confined to furnished houses; and the
earlier cases just mentioned were overruled.
The facts of
Suttolz
v.
Temple
were these. The plaintiff had
demised the pasturage
of
land to the defendant. The land proved
1
11
M.
&
W.
5.
1
Edwards
v.
Ethcrington
(1825),
Ry.
&
M.
268;
Collins
v.
Barrow
(1831).
1
(1843).
IZ
M.
&
W.
53.
I
M.
&
Rob.
IIZ.
THE
DUTIES
OF
NON-OCCUPIERS
I
95
to have been poisoned by the presence of refuse paint in manure
that had been used on it, and cattle put upon
it
died. There was
no evidence that the plaintiff knew of the defect at the time of
making the lease.
It
was held that the defendant was not
released from his covenant to pay rent. The decision appears at
first sight to
be
a
simple application of the rule in
Paradine
v.
Jane.4
But there is this difference between the two cases, that
Paradine
v.
Jane
was a case of subsequent failure of consideration,
while
Sutton
v.
Temple
was a case of initial failure. Suppose that
the facts of
Paradine
v.
Jane
had been that the house was
destroyed before the contract for the lease was made; is it
certain that the lessee would still have been bound by his lease?
If
the justification for
Paradine
v.
Jane
is that the tenant takes
the risk of the destruction of the premises
(or
other failure of
consideration) during the term,5 this in itself excludes a case
where the destruction has already taken place at the commence-
ment of the term, and
a
fortiori
it
excludes
a
case where the
destruction has already taken place at the making of the contract
for the lease. Looked at in this way,
Paradine
v.
Jane
was not a
conclusive authority in
Szttton
v.
Temple.
The chief argument for the defence was the analogy of the
rule relating to the letting of chattels.
It
was and is well settled
that on
a
contract of letting and hiring there is an implied
warranty and condition precedent (i.e. taken together, an implied
“condition” in the unfortunate sense in which that word is used
in the Sale of Goods Act) that the chattel shall be reasonably fit
for the purpose for which (as the letter knows) the hirer intends
to use it.
As
Lord Abinger expressed it, “if a carriage be let for
hire, and it breaks down on the journey, the letter of it is liable,
and not the party who hires it.
So,
if a party hire anything else
of the nature of goods and chattels.
.
.
.’I6
It
was because the
case of
Smith
v.
Marrable
involved a letting of chattels as well as
the lease of a house that the court in
Sutton
v.
Temple
was ready
to uphold it. But it is not easy
to
see why the rule for chattels
should not be applied to a lease purely
of
land. Parke,
B.,
appears to have been moved chiefly
by
judicial caution or timidity.
“No
doubt,” he said, “it is
a
hard case on the defendant, but we
must not allow considerations of that kind to persuade us to
introduce into the law an alteration of which we cannot foresee
the consequences, by which the mere demise of
a
farm would
(1647).
Aleyn
26.
This case does not
appear
to have been cited in
Strtton
v.
Temple,
but it was cited in
Hart
v.
Windsor,
which followed
Sutton
v.
Temple
(below).
See
(1941) 4
MODERN
LAW
REVIEW
at
257.
12
M.
&
W.
at
60.
,

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