Common-Law Disclosure Duties and the Sin of Omission: Testing the Meta-Theories

This Article represents the first attempt to study empirically the factors that cause courts to impose disclosure duties on bargaining parties in some circumstances, but not in others. We analyze data coded from 466 decisions spanning a wide array of jurisdictions and covering over two hundred years. The results are mixed. In some instances our data support the conventional wisdom relating to common-law disclosure duties. For example, we find that courts are more likely to require the disclosure of latent, as opposed to patent, defects and are more likely to require disclosure when the parties are in a fiduciary or confidential relationship. In other instances, our results cast doubt on much of the conventional wisdom regarding the law of fraudulent silence. First, although it is generally understood that courts have become more likely to impose disclosure duties over time, we find that courts actually have become less likely over time to impose duties to disclose. Second, and perhaps most importantly, we find that courts are no more likely to impose disclosure duties when the information is casually acquired as opposed to deliberately acquired, and that unequal access to information by the contracting parties is not a significant factor that drives courts to find a duty to disclose. We do find, however, that when both factors are present courts are significantly more likely to force disclosure