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Vol 21 No 11 Nov/Dec 2016

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Privity: Private Justice or Public Regulation

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Edited by: Peter Kincaid

ISBN13: 9780754620891
ISBN: 0754620891
Published: March 2003
Publisher: Ashgate Publishing Ltd
Country of Publication: UK
Format: Hardback
Price: Out of print



This text considers the idea that a ""third party"" should be able to sue the promisor of a contract, covering previous case law on the subject in the UK and abroad. It also discusses the history of the idea of ""third party"" rights and the outcomes of law reforms and the effect on other law.

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Subjects:
Contract Law
Contents:
Part 1 Theoretical issues raised by the privity question, Peter Kincaid: private or public justice; flexible v. formal reasoning; pragmatism v. principle; nature and source of a third-party right; rights and duties - the question of focus; remedies.
Part 2 Summaries of essays, Peter Kincaid: privity - the end of an era (error), Robert Flannigan; privity and private justice in contract, Peter Kincaid; privity reform in England, Peter Kincaid; privity - a rule in search of decent burial?, Sir Anthony Mason; searching for the principles behind privity reform, Catherine Mitchell; beyond promissory principle and protective pragmatism, Roger Brownsword and Dale Hutchison; contracts for the benefit of third parties - in defence of the third party rule, Stephen A. Smith; the third-party beneficiary principle, Melvin Aron Eisenberg; is privity worth defending?, John Gava; the rights of third parties to contracts - a suggested basis for recognition, John Swan; reciprocity beyond privity, Simon Whittaker; privity and exclusion clauses, J.L.R. Davis; privity, property and pragmatism, Anthony Jon Waters.
Part 3 Privity - the end of an era (error), Robert Flannigan: the early cases; privity or consideration?; the entrenchment of the doctrine of privity; the modern cases; privity pro and con; privity and contract theory; conclusion.
Part 4 Privity and private justice in contract, Peter Kincaid: the Law Commission's proposals; the Law Commission's justifications; issues raised by justifications; conclusion.
Part 5 Privity reform in England, Peter Kincaid.
Part 6 Privity - a rule in search of decent burial?, Sir Anthony Mason: the nature of the privity rule; the purpose of the privity rule; suggested justifications for the rule; the rule is not accepted or has been modified elsewhere; the justification for departing from the rule; other reasons for departing from the rule; trust of the third party promise; complexity, artificiality and uncertainty; adverse consequences for commercial activities; criticisms of the case for departing from the rule; other criticisms of reform; conditions according to which third party enforcement is permitted; conclusion.
Part 7 Searching for the principles behind privity reform, Catherine Mitchell: the proposals for reform; the Law Commission proposals and the orthodox account of contractual obligation; can the orthodox account justify third party rights in contract?; the crystallization test; the Law Commission and the modern account of contractual obligations; conclusion.
Part 8 Beyond promissory principle and protective pragmatism, Roger Brownsword and Dale Hutchison: from bilateral to trilateral promissory situations; the South African regime; the new English regime; conclusion.
Part 9 In defence of the third party rule, Stephen Smith: the third party rule defined and defended; the real problems in privity cases; the Law Commission's reform proposals; conclusion.
Part 10 The third-party beneficiary principle (part contents).