Privity of contract

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The vexed question of who may sue a delinquent contractual obligor for losses sustained due to its mis-performance of a contract. Until 1999, the common law was clear: only the parties themselves had a right of suit, even if the contract explicitly purported to confer a benefit on a third party. This state of affairs was adjudged by the legal fraternity to be a fine thing — a third party beneficiary could always prevail on a party to the contract to exercise those rights on its behalf.

The legislators of England and Wales thought otherwise, and in a moment of millennial madness, enacted the Contracts (Rights of Third Parties) Act 1999, which provided a third party direct rights to claim where the contract explicitly contemplated it.

Sniffily, the industry’s response was some boilerplate language explicitly purporting not to confer such a benefit, therefore rendering the CRTPA a dead letter even on its launch date. To this contrarian, that seems to be a pity, and a missed opportunity. But there you go; hey ho.


See also