privity Flashcards
Murdoch & Hunt
it is the relationship between parties to a contract which ensures the contract cannot impose liability on a stranger
Tweedle v Atkinson
son could not enforce agreement between father and prospective father-in-law that he would be given money on getting married
Murphy v Bower
P were carrying out work for railway company, contract employed D who was also contracted to keep track of P’s work & issue certs for work done where payment would follow, D refused to certify some of P’s work, P sued D, held P was a stranger to the contract between D and the company
Monahen CJ
no one can maintain an action who is not party to a contract
Tomlinson v Gill
D promised widow if she appointed him as administrator of husband’s estate he would personally settle any unmet debts, failed to honour this, creditor brought action seeking repayment, court inferred existence of a trust to which creditors were beneficiaries and widow was the trustee
Cadbury v Kerry Co-op
creamery acquired other creameries on the terms that their supply of milk to Cadbury would not be cut off, Cadbury not party to this, later creamery sought to reduce supply, Cadbury tried to rely on contract, held they could not, Barringotn J noted the modern trend was to define the device within narrow limits, there was an intention to benefit TP but not Cadbury, therefore no intention to create a trust in favour of Cadbury
Drimmie v Davis
father 7 son opened dental practise on the agreement that the son would become the sole owner on the death of the father provided he maintained his siblings and mother, when father died siblings sought to enforce the promise which the brother was not going to honour, court side-stepped privity and found a trust which the siblings were beneficiaries of
Midlands Silicones v Scrutton Ltd
TP can rely on clause in parent contract where:
- parent contract makes it clear TP is to be protected by provisions
- parent contract makes clear that contracting party contracts as A for TP
- contracting party has authority to act as A
- consideration moving from TP
The Mahkutai
accepted clause was effective to protect a sub-contractor against claims in tort by consignee
Hearn & Matchroom Boxing v Collins
contract of management of boxer between himself & Matchroom Boxing, company operated by Barry Hearn, held Barry could personally rely on contract as the company acted as A for him
Smith v Eric Bush
purchaser applied to building soc for mortgage, valuers conducted mortgage valuation, application form included disclaimer of liability in respect of report’s accuracy, HOL held exclusion clause was effective @ common law, valuers had defence when sued - ultimately found to be unfair
Woodar v Wimpey
P vendors agreed to sell land to purchasers on set price with further amt payable to TP on completion, vendors alleged purchasers repudiated contract & sought damages, purchasers argued they weren’t liable and if so shouldn’t be liable to TP - HOL agreed
Shanklin Pier v Detel Products
P hired contractors to repair and repaint pier, P recommended they use paint from D, contractors got contract with D for paint, D said paint would last 7 years, turned out v poor quality, faded after a few months, P sued D, held collateral contract existed between P and D - D promised paint would last 7 yrs and on this P compelled contractors to buy paint
McDermott
privity can be overlooked by giving effect to the commercial reality of the transaction
London Drugs v Kuehne
P contracted for storage of goods in D’s warehouse, contract limited liability of warehousemen to 40lbs, P’s goods damaged by employees of D, employees benefitted from the limitation clause
Clark
using the trust mechanism is unlikely to continue as it has fallen into disfavour with judges and commentators
Molloy
given the pace of technological change, it is unlikely that privity will continue to be the unshakeable rule it always has been
