¶1I concur in the result but get there differently. On the question of whether an implied warranty of fitness attached to this sale by vendors not in the business of selling or constructing residential housing the lead opinion concludes that the Supreme Court in Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374 [115 Cal.Rptr. 648, 525 P.2d 88] has determined that such liability pertains only to commercial sellers and developers. It is accurate to say that such were the facts in Pollardbut the problem is that Justice Clark’s opinion for a unanimous court used language much broader than those facts. He put the question this way: “This case presents the issue whether the doctrine of implied warranties of quality and fitness—now applicable to the sale of goods and to some contracts for labor and material— should also apply to the sale of newly constructed real property.” (Id., at p. 376.) Not one word about limiting the question or the holding to those in the business.
¶2Nor is there anything in the reasoning of Pollardto suggest such limitation. The Supreme Court’s conclusion is that “builders and sellers of new construction should be held to what is impliedly represented—that the completed structure was designed and constructed in a reasonably workmanlike manner.” (Id., at p. 380, fn. omitted.)
¶3Just last year in Becker v. IRM Corp. (1985) 38 Cal.3d 454 [213 Cal.Rptr. 213, 698 P.2d 116, 48 A.L.R.4th 601], the California Supreme Court interpreted its prior holding in Pollardthis way: “it was held that an implied warranty of quality attaches to the sale of new construction. The court pointed out that the doctrine of implied warranty in a sales contract is based on the actual and presumed knowledge of the seller, reliance on the seller’s skill and judgment, and the ordinary expectations of the parties.” (Becker v. IRM Corp., supra, at p. 460, italics added.) Again, the court did not mention the new requirement my colleagues find, i.e., that the builder or seller be in the business. Nor is there any extant lower court opinion cited by name that even hints at the majority opinion’s thesis.
¶4Thus my vote of affirmance is premised not upon the constraints of stare decisis. I do not read the relevant California cases as having decided whether or not such implied warranties apply to the casual seller of a new residence. That appears also to be the Legislature’s reading of the state of the law since otherwise it would be an idle act to imposing liability for willful or negligent failure of any seller of real property to disclose certain defects as set forth in Civil Code section 1102 et seq., operative January 1,1987. Since the Legislature has imposed liability on such sellers which falls short of strict liability there is no reason for the courts to interfere with that determination.