Both Lord Diplock and Lord Steyn have at some point taken a negative view towards the doctrine of privity, the former described the privity rule as “an anachronistic shortcoming that has for many years been regarded as a reproach to [the] law ” and the later declaring it has having “no place in our more complex commercial world ”. The decisive case that establishes the doctrine of privity of contract is Tweedle v Atkinson , where the courts ruled that there is no legal entitlement conferred on third parties to an agreement nor are third parties able to derive any rights from that agreement nor subject to any burdens imposed by it. The common law doctrine of privity has been a central rule of English contract law for over 200 years. The fact …show more content…
This rule can cause significant commercial inconvenience. For example, contracts often contain exclusions of liability and indemnities in favour of third parties but the third parties may have to depend on the ability of a contracting party to obtain substantial remedy, as recognised in Midland Silicone and The Eurymedon . It is important to recognise that in the case of the Eurymedon, the courts departed from a formalist viewpoint and applied principles of consideration to reach a justifiable conclusion for the third party. This highlights that not only does the doctrine not act unjustly, but also that despite the solid foundations, the doctrine has been open to interpretation to accommodate consumer welfarist …show more content…
The Act, prompted by the recommendations of the law commission impacts upon every aspect of commercial legal practice and it makes fundamental changes to the doctrine of privity hence why it should be explored. Section 1 (1) of the Contracts (Rights of Third Parties) Act introduced a limited third party right of action. It also comes with various implications to allow such a right of action, such as the third party needs to be ‘expressly identified’, an issue which arose in the case of Avraamides . Cliona Kelly stated that in practice privity does not cause real difficulties due to the statutory exceptions devices which are frequently used to circumvent the rule and hence presents an argument in favour that sticking to the ‘status quo’ of the original doctrine would have been sufficient, but I have so far rebutted this; demonstrating problems of injustice and inconvenience. From my evaluation I believe the 1999 act to be positive by addressing previous concerns from the doctrine of privity. To cite an instance, Jackson v Horizon Holidays Ltd would now be partly resolved by Section 1(1)b of the act, allowing a third party to claim independently. But yet it also brings unconstructive development, ideas of which I now give explanation
In the case of Darlington Futures Ltd v Delco Australia Pty Ltd (1986), the High Court ruled that: The interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in light of the contract as a whole, thereby giving due weight to the context in which the clause appeared including the nature and object of the contract… This brings to question whether ‘loss or theft’ covers the severe water damage to Kati’s car. In the case of Thornton v Shoe Lane Parking (1971), Denning MR found that if there is an offer communicated through a sign of notice at the entry of a carpark, this offer is accepted by a customer by the ‘movement of his car’ through the entrance . By this
The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ?
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Hilary Delany (2009) – Is there a future for proprietary estoppel as we know it? Dublin University Law Journal
...posit is made with the whole, with no individual. The contract is equal, for each gives all. No one reserves any rights by which he can claim to judge of his own conduct” (Strauss and Cropsey 1987, 568).
part of the Doctrine Hedley Byrne and Co. Ltd V Heller and. Partners Ltd (1964), Rondel V Worsley (1969).
This case mentioned below is a fine example of understanding the Law of Contract in a better manner. (Gerald, 2014).
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
Accessed 16/03/2012. http://www.law201.co.uk/95.pdfaccessed on 16/03/2012. http://www.oup.com/uk/orc/bin/9780199219742/01student/mindmaps/loveland_mindmaps_royal_prerogative.pdfaccessed on 17/03/2012. http://www.justice.gov.uk/royal-prerogative.pdf accessed on 17/03/2012. http://www.justice.gov.uk/royal-prerogative.pdf accessed on 18/03/2012.
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.
in criminal law and Beckett Ltd v. Lyons [1967] 1 All ER 833 the law
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...