Part I The Nature of Intangible Property, 5 Rights Under a Contract

2018 ◽  
Author(s):  
Smith Marcus ◽  
Leslie Nico
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
The Common ◽  
Contractual Rights

This chapter studies rights under a contract. Contractual rights exist between, and are only enforceable by, the parties to the contract. In other words, contractual rights and obligations are essentially bilateral. Two principles of the common law tend to prevent third parties from enforcing the contract: a contract for the benefit of a third party cannot be enforced directly by that party; the promise cannot be indirectly enforced by the contracting party. The chapter then considers the statutory exception to the rule that exists in the shape of the Contracts (Rights of Third Parties) Act 1999, as well as the nature of contractual rights as property.

7. Privity of contract and third party rights

2021 ◽  
pp. 307-358
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

3. Special duty problems: omissions and acts of third parties

2019 ◽  
pp. 49-59
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Duty Of Care ◽  
The Third ◽  
The Common ◽  
Relationship Of ◽  
Special Duty

This chapter discusses the problem of when a duty of care arises in respect of negligent omissions, or for the actions of a third party. The common law takes the view that it would be too great a burden to impose liability upon a person for a mere omission, or for the actions of others. Despite this, duties can in fact be imposed in various ways, all of which focus on the reliance of the claimant upon the defendant. This can come about either by the previous conduct of the defendant, which induces reliance by the claimant that the defendant will continue to act in that way, or by reliance which comes out of a relationship of dependence between the parties. As regards third parties, a duty may arise where the defendant has control over or responsibility for the third party’s actions.

Conditions in Favour of Third Parties

1952 ◽  
Vol 11 (2) ◽  
pp. 240-257
Author(s):  
T. C. Thomas
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Common ◽  
The Law ◽  
The Third Party

The purpose of this article is to consider the legal effects of a transfer of property by A to B subject to the performance by B of some obligation in favour of C, a third party to the transfer. The student of the law of contract is well familiar with the common law rule that no one who was not an original party to the contract is entitled to the benefit of that contract. But this rule creates hardship in particular cases and it has been shown that, in the main, three methods have been evolved to evade those unfortunate results. First, the legislature has intervened and provided C, the third party, with statutory rights. Secondly, the doctrine of agency has been invoked whereby C may claim that he is the principal of B. Thirdly, but with varying success, the trust concept has been pressed into service whereby C has sometimes been able to show that he is a beneficiary.

Contracts for the Benefit of Third Parties: Hong Kong

2018 ◽  
Author(s):  
Lee Mason
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Strict Adherence ◽  
The Third ◽  
English Law ◽  
The Law ◽  
The Third Party ◽  
Contractual Rights

This chapter analyses the law on third party beneficiaries in Hong Kong long characterized by strict adherence to the traditional common law doctrine of privity. The law relating to third party rights was only reformed by way of Ordinance in 2016, along the lines of the statutory reform of English law in 1999. A small number of specifically enumerated types of contract are excluded from the scope of the Ordinance; other contracts may be concluded to confer enforceable contractual rights on third parties. Whether a third party may enforce a term of a contract depends on the interpretation of the contract: if the third party right was not expressly conferred there is a presumption that the conferral was intended; but this can be rebutted if the parties made it clear that they did not intend it to be enforceable. The third party must be identified by name, as a member of a class, or answering a particular description and may claim the same remedies for breach as a party to the contract.

Contracts for the Benefit of Third Parties in Malaysia

2018 ◽  
Author(s):  
David Fung
Keyword(s):  
Property Rights ◽  
Subject Matter ◽  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Privy Council ◽  
The Common ◽  
Clear Statement

This chapter examines the Malaysian position on privity and third party beneficiaries. Given that the Malaysian Contracts Act 1950 (‘MCA 1950’) is virtually a copy of the Indian Contract Act 1872, the issues are, unsurprisingly, similar. The absence of a clear statement of the rule in the MCA 1950 meant that its existence was susceptible to challenge. It was only in Kepong Prospecting Ltd v Schmidt, when the Privy Council pronounced on the fundamentality of the privity rule, that the matter was finally settled. This chapter demonstrates the ingenuity and the limitations of the common law. The strategy of finding an express trust of a promise finds a familiar trajectory in the use of that strategy in England. The need to prove the three certainties of intention to create a trust, beneficiaries, and subject matter emphasizes the clear intention to create property rights. An alternative explored by the author relates to the institutional constructive trust which requires a proprietary base by which the constructive trust may be found.

10. Third parties

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Relevant Term ◽  
The Common

This chapter considers two principal questions: firstly, may a person who is not a party to a contract acquire rights under it? Secondly, can a contract impose duties on a person who is not a party to it? With some exceptions, the common law answered ‘No’ to both. A contract between A and B cannot be enforced by a third party, C, even if the contract is for the benefit of C. Nor can a contract between A and B impose burdens on C. Following the Contracts (Rights of Third Parties) Act 1999 there is now a statutory exception to the principle that C acquires no rights under a contract between A and B. Under this Act, a third party might be able to enforce a term of the contract if the contract expressly provides that he may, or if the relevant term purports to confer a benefit on him.

11. Privity of contract and third party rights

2019 ◽  
pp. 519-570
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract ◽  
Selection Of

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

6. Privity

2020 ◽  
pp. 128-158
Author(s):  
Janet O’Sullivan
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
The Core ◽  
The Subject ◽  
The Law ◽  
Contractual Obligations ◽  
Contractual Rights

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the doctrine of privity in the law of contract. The doctrine of privity dictates that a person who is not a party to the contract cannot be granted contractual rights by the contract or be placed under contractual obligations by it. It explores the rationale of the principle, discusses the authorities that established it, and explores the various common law exceptions to the rule that a third party cannot acquire rights under a contract. This chapter also covers the statutory exception to privity provided in the Contracts (Rights of Third Parties) Act 1999.

6. Privity

2018 ◽  
Author(s):  
Janet O’Sullivan
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
The Core ◽  
The Subject ◽  
The Law ◽  
Contractual Obligations ◽  
Contractual Rights

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the doctrine of privity in the law of contract. The doctrine of privity dictates that a person who is not a party to the contract cannot be granted contractual rights by the contract or be placed under contractual obligations by it. It explores the rationale of the principle, discusses the authorities that established it, and explores the various common law exceptions to the rule that a third party cannot acquire rights under a contract. This chapter also covers the statutory exception to privity provided in the Contracts (Rights of Third Parties) Act 1999.

10. Third parties

2021 ◽  
pp. 123-148
Author(s):  
Paul S. Davies
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Relevant Term ◽  
The Common

This chapter considers two principal questions: firstly, may a person who is not a party to a contract acquire rights under it? Secondly, can a contract impose duties on a person who is not a party to it? With some exceptions, the common law answered ‘No’ to both. A contract between A and B cannot be enforced by a third party, C, even if the contract is for the benefit of C. Nor can a contract between A and B impose burdens on C. Following the Contracts (Rights of Third Parties) Act 1999 there is now a statutory exception to the principle that C acquires no rights under a contract between A and B. Under this Act, a third party might be able to enforce a term of the contract if the contract expressly provides that they may, or if the relevant term purports to confer a benefit on them.

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