finding no misrepresentation where seller "did not convey half truths . . . [or] make a partial disclosure of the kind which so often requires a full acknowledgement to avoid deception"
How later courts described this case
- finding no misrepresentation where seller "did not convey half truths . . . [or] make a partial disclosure of the kind which so often requires a full acknowledgement to avoid deception"
- affirming rejection of homebuyers’ consumer-protection-act complaint because there was no evidence that real estate broker knew or should have known about subject property’s wetness problems
- concluding, amid legislative silence, that G. L. c. 93A claims are not entitled to trial by jury
- stating that no duty to disclose exists when two parties negotiate a deal at arm’s length
Written by the judges who cited it.
Later courts went against this
Questioned by Newly Weds Foods, Inc. v. Westvaco Corp., 14 Mass. L. Rptr. 278 (2001)
However, Westvaco’s argument fails, even granting the continued vitality of Nei, because the causes of action that the legislature authorized under G.L.c. 93A and G.L.c. 21E differ substantially.
Questioned by Newly Weds Foods, Inc. v. Westvaco Corp., 14 Mass. L. Rptr. 1 (2001)
However, the Westvaco argument fails, even granting the continued vitality of Nei, because the causes of action that the legislature authorized under G.L.c. 93Aand G.L.c. 21E differ substantially.
The opinion
Abrams, J.
(dissenting in part). I dissent. The court has turned Begelfer v. Najarian, 381 Mass. 177 (1980), upside down to reach the result that the Burleys are not liable under G.L. c. 93A. Whether an individual’s participation in a transaction takes place “in a ‘business context’ must be determined [by the] . . . nature of the transaction, the character of the parties involved, and the activities engaged in ... , whether [a] similar transaction ha[s] been undertaken in the past, whether the transaction is motivated by business or personal reasons . . ., and whether the participant played an active part in the transaction.” Begelfer v. Najarian, 381 Mass. at 190-191 .
The defendants in Begelfer v. Najarian did not act in a business context. They were passive investors, who could not negotiate the terms of the loan, did not actively manage the loan, and received loan payments from an agent. The court determined that the Burleys likewise were not active in the sale of their land. However, the Burleys actively engaged in conduct designed to enhance their profit from selling their land. They had the land surveyed and divided into lots by experts. 1 They hired a broker to advertise and *319 sell the land. Further, the Burleys may negotiate the terms of a sale, may increase or reduce the price of the land, and retain the right to accept or reject any bid. To this extent, the Burleys are no different from an average developer who holds unimproved land. The Burleys, in fact, are the moving force in the business. They can supervise and direct the business, and they have not delegated their authority over the property to anyone else. I fail to see how their active control, direction, management, and supervision of the property and its sales can be viewed as a minor, passive role. By their conduct, the Burleys are engaged in “trade” or “commerce,” within the meaning of G.L. c. 93A, § 2.
Unlike Lantner v. Carson, 374 Mass. 606, 612 (1978), the Burleys are not on an equal footing with the Neis. The experts they hired to assist them provided them with the benefit of expert knowledge, equivalent to that of any professional selling real estate.
The Burleys are entitled to enhance their profits to pay for their children’s education, by treating their land as if they were developers. Having elected to treat their land as a business venture, the Burleys, therefore, were engaged in trade or commerce. In these circumstances, the Burleys should not be permitted to educate their children at the expense of consumers. In my view, the facts require a conclusion that the Burleys are within the ambit of G.L. c. 93A, § 2. I respectfully dissent from that portion of the court’s decision.
I agree with the court’s conclusion that the broker is not liable to the Neis under G.L. c. 93A. The broker’s conduct in describing land as “ready to go,” when in fact it was not ready to go, was unfair and deceptive. However, the plaintiffs did not allege or prove “a causal connection between the deception and the loss.” International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 850 (1983). Failure to prove such a causal relationship is fatal to the Neis’ G.L. c. 93A claim against the broker.
It is unclear whether the Burleys were required to file a subdivision plan.