242 / 364
of the case under consideration as set out in the
report, and while it is not possible to say that
an Irish Court would arrive at precisely the same
conclusion upon the same set of facts, it is highly
probable that they would do so.
It is the business of the tenant if he does not
protect himself by an express warranty to satisfy
himself that the premises are fit for the purpose
for which he wants to use them, whether that
fitness depends upon the state of their structure,
the state of the law, or any other relevant cir
cumstances. Accordingly, on this view, there is no
warranty or guarantee by the lessor or sub-lessor
of the premises that there are no restrictive cov
enants which would prevent the lessee or sub
lessee from using the premises in the manner
desired.
As regards the position of the solicitor, having
regard to the
obiter dictum
of Russell, L. J.,
counsel advises that it is the duty of the solicitor
for an intending sub-lessee to acquaint himself
with the purposes for which his client requires
the property and to ensure that there are no
defects of title or otherwise which would prevent
his client from using it for the purpose for which
he requires it. The discharge of this duty may
require the solicitor for the intending sub-lessee
to inspect, or make inquiry as to the existence
and nature of any restrictive covenants under
which the sub-lessor holds. If the solicitor for
the lessee has an opportunity of negotiationg
the terms of the contract with the intending sub
lessor he should ensure that provision is made
to enable him to obtain all appropriate and
necessary information in the circumstances of the
case. He would be negligent if he were to permit
a client wishing to acquire and lay out money on
a property to enter into a contract for a sub
lease which would preclude him from acquiring
the appropriate information, including, if neces
sary, an investigation of the lease under which
the sub-lessor holds the property without warning
him of the possible consequences.
If the solicitor for the intending sub-lessor, on
being asked by the solicitor for the intending
sub-lessee as to the existence or otherwise of re
strictive covenants, should give a reckless and
untrue answer he could be held liable for dam
ages, whether he gives an express warranty or
not. This would appear to follow from the recent
English decision in Hedley Byrne v. Heller and
Company, where it was held that a bank issuing
a reference for a customer being aware that the
reference would be used for the purpose of ob
taining credit from a third party would be liable
for any financial loss arising from the bank's
negligence, in the absence of a express disclaimer.
It appears to follow therefore, from the
obiter
dictum
of Russell, L. J., and counsel's opinion
thereon, that the sub-lessee's solicitor may be
liable for negligence if he fails to make proper
enquiries as to the existence of restrictive coven
ants in the head lease, and that the sub-lessor's
solicitor may be liable for damages to the sub
lessee if he recklessly gives a false answer to an
enquiry by the sub-lessee's solicitor.
Counsel advises that if the information ob
tained as a result of enquiries by the sub-lessor's
solicitor shows that the intended sub lease would
be void the solicitor acting for the sub-lessee
should inform his client and should not proceed
with the transaction. If the information received
shows that the intended lease, or sub lease, would
be liable to forfeiture because of breach of covenant
by the intended sub lessor the sub-lessee's solicitor
should explain this to his client, bearing in mind
the possibility of getting a waiver or the covenant
or relief against forfeiture. If, despite proper en
quiries and information obtained, the client pro
ceeds contrary to advice and thereby sustains
damage he cannot hold his own solicitor liable.
If the solicitor for the intending sub-lessee is
unable, notwithstanding enquiry, to obtain any
information as to the existence or otherwise of
restrictive covenants in the superior lease, he
should likewise inform the client of the risk which
he takes in proceeding without information. If
the client, having been properly advised as to the
risk, proceeds on his own judgment the solicitor
will not be liable for negligence.
Having regard to the importance of the matter
the Council have brought it to the attention of
the Commission on Landlord and Tenant Law.
NATURAL JUSTICE
In Ceylon, every school falling with a certain
category, had,
inter alia,
(a) to pay its teachers
salaries by the 10th of the month immediately
after that in respect of which they were paid, and
(b) had to satisfy their Director of Education
that it had sufficient funds to maintain the school.
If any school failed to satisfy these requirements
the Minister for Education could make an Order
providing, in effect, for the school to be taken over
by the State. On one occasion salaries for July
were not paid until August 18th. The Director
drew attention of the school to obligation (a)
above, but not to (b), and then an Order was
made taking over the school. In a public broad
cast the Minister justified the Order on both the
above grounds. The Privy Council quashed the
24