Soil-Structure Interaction Seminar - Foundation Performance ...

d. The Broker
(1) Absent specific agreement, broker is generally the agent of
the seller.
(2) Broker is a "limited" or "special" agent.
(3) Potential arguments regarding this limited authority, based
on ratification by seller's benefitting from the broker's
affirmative misrepresentations, may require seller to
rescind sale to protect itself from broker's conduct.
(4) Real estate agents and brokers have no legal duty to inspect
property for defects beyond asking sellers if such .defects
exist. Kubinsky v. VanZandt Realtors, 811 S.W.2d 711
(Tex. App.--Fort Worth 1991, writ denied).
(5) There is an implied warranty of good and workmanlike
performance with respect to services of real estate brokers.
D. Regarding subcontractors, engineers, architects and brokers, you really want to
require proof of insurance (review certificates of insurance/policies)
E. Indemnities/Disclaimers
1. Disclaimers of DTPA liability are normally void. DTPA § 17.42.
2. Under "fair notice requirements," any contractual disclaimer must be
conspicuous. Dresser Industries, Inc. v. Page Petroleum, Inc., 853
S.W.2d 505 (Tex. 1993).
3. Texas follows the "express negligence" test regarding disclaimers of
negligence. Ethyl Corp. v. Daniel Construction Co., 725 S.W.2d 705
(Tex. 1987).
F.. Warranty Companies
1. "Benefit of the Bargain" Argument
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