Illegality Flashcards
What is privity of contract?
No enforceable rights for third parties, no obligations.
What are examples of common law methods of circumventing the doctrine of privity?
- agency
- assignment
- collateral contracts
- Tort
- judicial attempts
What is required to show agency?
- Principal should be named and make clear agent contracting on their behalf
- Agent authorised to act as agent
- Consideration moved from principal
What cannot be assigned to a third party?
Obligations
How can a third party enforce rights under the Contracts (rights of third parties) act?
- specifically provide that third party can enforce term
- establish that agreement confers benefit on third party and not the case that parties didnt intend the term to be enforceable by third party
When can parties to a contract not agree to vary/extinguish a third party’s rights without his consent?
a) TP communicated assent to the term to promisor or
b) Promisor aware that TP has relied on term or
c) Promisor can reasonably be expected to have foreseen that TP would rely on term and TP has relied on the term
How can a third parties assent to a term be communicated?
Words or conduct
When is assent communicated by a third party if sending by post?
When received by promisor
How can parties allow variation/extinguishing of a third parties rights without their consent?
express term in contract
When can the court dispense of a third parties rights without their consent?
- whereabouts cannot be reasonably ascertained
- mentally incapable of giving consent
- reliance on term cannot reasonably be ascertained
What may happen where a court dispenses of a third parties rights without their consent?
May impose conditions eg compensation
Cannot place in better position than in third party had been party to contract
