Privity (Defences)

Question 1

1. Case Law Provides…

Answer 1

[If Relevant] Case Law provides other ‘special case’ exceptions where the rule of privity will not apply.

Question 2

2. There could be a collateral contract which is a…

Answer 2

[If Relevant] There could be a collateral contract which is a subcontract formed in addition to the main contract. If a contracting party to the main contract insists on the collateral contract, they will have rights over a party in the subcontract (a non-contracting party), as in Shanklin Pier v Detel.

Here [eg. Under the rule of privity there is no privity of contract between C and X. However, under the case law exception, there is a collateral contract between them, as X insisted on a particular type of paint, so C will be able to enforce his third party rights against X even though C is a non-contracting party].

Question 3

3. There could be a restrictive covenant, for example to build on land, placed by a seller of land, which…

Answer 3

[If Relevant] There could be a restrictive covenant, for example to build on land, placed by a seller of land, which ‘runs with the land’ and binds subsequent purchasers as in Tulk v Moxhay.

Here [eg. Under the rule of privity there is no privity of contract between C and X. However, under the case law exception, the restrictive covenant placed by C not to build on land, can be enforced against X even though X is a non-contracting party].

Question 4

4. An agency agreement where an agent makes a contract with another party on behalf of his client…

Answer 4

[If Relveant] An agency agreement where an agent makes a contract with another party on behalf of his client, the client can enforce their rights that contract.

Here [eg. Under the rule of privity there is no privity of contract between C and X. However, under the case law exception, there is an agency agreement, so C will be able to enforce his third party rights against X even though C is a non-contracting party].

Question 5

5. Where a contract is made by one person on behalf of the whole family, as in Jackson v Horizon Holidays…

Answer 5

[If Relevant] Where a contract is made by one person on behalf of the whole family, as in Jackson v Horizon Holidays, each family member can enforce their rights under that contract.

Here [eg. Under the rule of privity there is no privity of contract between C and X. However, under the case law exception, the contract was made by X on behalf of the family, so C will be able to enforce his third party rights against X even though C is a non-contracting party].