Halvorson v Persimmon Homes Ltd

Contract – Construction – Implied term – Exclusion clause – Time bar. Sheriff Court: In an action in which the pursuer sought damages from the defender, from whom she purchased new-build house in 2012, founding on breach of contract and delict, complaining that the garden was unusable due to waterlogging caused by drainage work the defender carried out in 2014, the court, inter alia, allowed the pursuer a proof before answer in relation to her delictual case based on averments that the property suffered damage after she acquired it but not that based on averments that it fell into her ownership already damaged, and held that the test for implication of a term in the missives that the garden would be fit for the purpose for which it would reasonably be used by the pursuer was not satisfied; it also held that a non-supersession clause rendered the action time-barred but that the contract was not simply one for the transfer of land, and consequently that the Unfair Contract Terms Act 1977 also applied, and the question of whether it was fair and reasonable to incorporate the clause in the contract would require to be determined after proof before answer.

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