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Culpable silence: Liability for non-disclosure in the contractual arena

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  • Introduction: This article is concerned with the extent to which one party has a common law duty to disclose information to another, either antecedent to or during the life of a commercial contract.' Though the general rule for contractual negotiations is that there is no duty of disclosure, such an unqualified statement is misleading since there are numerous instances of liability being founded for a failure to disclose. Similarly, a duty to disclose during the performance of a contract can exist - even absent an express promise - as a result of the nature of the relationship between the parties, the nature of the contract in question, or the occurrence of material events concurrent with or subsequent to the contract's formation. In short, the existence of a duty to disclose in the contractual arena can escape general detection because it is implicit in or absorbed by a variety of other legal rubrics.

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  • Type of Item
    Article (Published)
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  • License
    © 1998 Canadian Business Law Journal. This article has been reproduced with the permission of the CBLJ.
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  • Citation for previous publication
    • O'Byrne, S. (1998). Culpable silence: Liability for non-disclosure in the contractual arena. Canadian Business Law Journal, 30(2), 239-266. Retrieved from
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