부동산계약상 부실표시와 고지의무 - 미국 판례를 중심으로 -

Under Traditaional Common law, there was no duty of disclosure when aseller of real property makes misrepresentation of a material fact to a prospective purchaser. The elements of actual fraud are these: a false stateme of material fact by one who knows or believes it to be false made with the intent to induce action by another in reliance on the facts and another party relies on the truth of the statement and has damages resulting from that reliance. In this context, mere silience alone had not been constituted fraud misrepresentation. However, when the seller knows of facts materially affecting the value ordesirability of the property which are known or accessible only to the seller and also knows that such facts are not known to, or within the reach of the diligent attention and observation of the buyer, the seller is under a duty of disclosure them to the buyer. In recent years, a majority of state courts in the United States have changed the standpoints by expanding the scope of the duty of residential real propertyseller. This attitude is an exception to the rule of caveat emptor. The seller of defective real property has a duty to disclose material facts which are known or should be known to the seller and which would not be discoverable by thepurchaser’s reasonable and diligent care. One of issues is whether the occurrence of a murder/suicide inside a houseconstitutes a material defect of the property. In particular, in Milliken case, the Pennsylvania Supreme Court noted that it could not quantify the psychological impact of different genres of murder, suicide, and other violent crimes. The court stated that although such events may be disturbing to a majority of the population and some percentage would not want to live in a house where such an event occurred, the events itself were not structural defects for nessesary diclosure. The court also held that a criminal event constituted a material defect would be impossible to apply consistently and would place an unmanageable burden on sellers. However, psychologically-impacted properties and the adverse effect such can have on property values. Psychological damage to a property can be considereda material defect in the property which must be disclosed by the seller to thepurchaser. The California court has considered three standard where the fact is sufficiently material fact to affet the market value or desirability of the realproperty is the follows: ① the gravity that non-disclosure inflicts harml ②imposing a duty to discover on the purchaser as an alternative to compellingrevealing; ③ its influence on the state of being stable of contracts if rescissionis permitted. Thus, like the Reed case of California, if the negative occerrences such as murder/suicide can affect to the market value of the property or desirability of abuyer, then it can be considered as a material defect which has a duty to disclose to a seller.