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題名 | Implied Warranty Protection for Consumers against Construction Defects in the Sale of New Homes under U.S. Law=「默示物之瑕疵擔保責任」--美國法就新建住宅買賣對於消費者之特別保護 |
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作者姓名(中文) | 陳淑琪; | 書刊名 | 臺北大學法學論叢 |
卷期 | 75 2010.09[民99.09] |
頁次 | 頁63-116 |
分類號 | 584.2 |
關鍵詞 | 消費者保護; 買賣; 不動產; 住宅; 物之瑕疵擔保; 默示瑕疵擔保; 保固期限; Consumer protection; Sales; Implied warranty; Warranty of good workmanship or workmanlike construction; Warranty of habitability or fitness for habitation; Residential real property; Construction defects; Builders; Developers; |
語文 | 英文(English) |
中文摘要 | 美國法就新建住宅買賣,關於買賣標的物之建造品質,對消費者有特別的保護規定。此即所謂的默示物之瑕疵擔保責任。其規範的對象包括實際從事建築施工的建商,以及開發該建築案的開發商。此項瑕疵擔保責任係採無過失擔保責任,主要的擔保內容包括所出售住宅之建造施工品質,以及該住宅之適合居住性(fitness for habitation)。 本文分爲五個部分,第一部分爲前言,接著先就默示物之瑕疵擔保責任之起源、形成背景及發展作介紹,其次再整理分析此項規定之政策考量。再於第四部分界定此項規定之涵義,並歸納說明美國司法實務上就此項規定之適用情形。最後,依據前述研究結果,筆者重新檢視美國現行此項保護規定,並就其未來發展予以評估,作成結論。 |
英文摘要 | This article examines the important legal protection that is afforded to consumers in the United States under the implied warranty doctrine through warranties judicially or legislatively imposed on builders and developers in their sales of new homes. The purchase of a home is likely the most important and expensive purchase consumers will make. In the past several decades, the law governing such important transactions between consumers and builders or developers has undergone a dramatic change in the vast majority of jurisdictions in the United States and has evolved from the traditional doctrine of caveat emptor-let the buyer beware-to the doctrine of implied warranty. During the centuries before this change, under the caveat emptor regime, builders and developers generally had little or no liability for construction defects in the homes they sold unless they had agreed to express warranties. However, following this change, implied warranties concerning the quality of the homes being sold have been imposed by law on builders and developers, requiring them to warrant to the buyers that the homes being sold are of good workmanship and reasonably fit for habitation, and liability will be imposed in the event they breach these warranties. Moreover, neither fault nor negligence on the part of the builder or developer is required for a claim for breach of these warranties, and in many jurisdictions, such warranties will run with the property to subsequent owners of the home. For consumers seeking relief from the builder or developer for construction defects in the homes purchased, pursuing actions under implied warranties is in many cases the most viable avenue of redress available to them and the avenue most likely to succeed. This article consists of five parts. Following the introductory part, this article first briefly examines the development of this implied warranty protection afforded consumers in the sale of new homes and describes how the law governing such transactions gradually evolved, turning away from the traditional doctrine of caveat emptor to the doctrine of implied warranty in the vast majority of jurisdictions in the United States. It next analyzes the policy considerations and rationales underlying the adoption of such implied warranties and supporting such a change from caveat emptor to implied warranty. This article then analyzes how this warranty protection is currently applied in practice; this article includes an appendix listing the jurisdictions in the United States which have adopted implied warranty protection in new home sales by builders or developers and the relevant statutes and leading cases recognizing such protection. Building on this analysis, this article concludes with additional observations and predictions on the home quality implied warranty protection that is afforded to consumers under S. law and the direction that future development in this field is likely to take. |
本系統之摘要資訊系依該期刊論文摘要之資訊為主。