Contracts (Rights of Third Parties) Act 1999: Difference between revisions

Contracts (Rights of Third Parties) Act 1999 (view source)

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 {{a|negotiation|
 [[File:Third man.jpg|450px|thumb|center|Why the hostility towards third parties, [[counsellor]]? What did they ever to do you?]]
-}}It is now lost in the mists of history, but once upon a time there must have been a reason why lawyers of the international capital markets were so collectively hostile to the [[Contracts (Rights of Third Parties) Act 1999]], a small piece of well-intended legislation which allowed contractual parties to agree that persons benefiting from their contract, but who were not parties to it (and therefore did not have “[[privity of contract]]” required by the [[common law]]), might, upon a breach, be allowed to sue directly to recover their loss.
+}}It is now lost in the mists of history, but once upon a time there must have been a reason why lawyers of the international capital markets were so collectively hostile to the [[Contracts (Rights of Third Parties) Act 1999]], a small piece of well-intended legislation which allowed contractual parties to agree that persons benefiting from their contract, but who were not parties to it (and thus did not have the necessary “[[privity of contract]]” required by the [[common law]] to take action under it), might, upon a breach, be allowed to sue the breaching party directly to recover their loss.
 Who could object to that?
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 Nonetheless, the great canon of capital markets [[boilerplate]] is shot through with hostility to this poor act. There's Para 27.10 of the {{gmsla}} for example: the very last paragraph, when all else is said and done, they knife the poor [[CRTPA]] just when, perhaps, it thought it had got away with it.
-It seems to [[Jolly Contrarian|your correspondent]] the [[CRTPA]] has its uses. To a careful user of the English language — and is there a carefuller one than a member of the worshipful company of solicitors? — it really ought not present much risk. And there are cases where it might be interesting:
+It seems to [[Jolly Contrarian|your correspondent]] the [[CRTPA]] has its uses. To a careful user of the English language — and is there a carefuller one than a member of the worshipful company of solicitors? — it really ought not present much risk. And there are cases where it might be interesting. Where the contracting counterparty who might enforce on a beneficiary’s behalf is dead, or insolvent, suddenly indisposed to the financial well-being of his erstwhile friend, or simply disinclined to take action for fear of upsetting his mendacious client. And these authorities:
 *{{casenote|Secure Capital|Credit Suisse}} [2017] EWCA Civ 1486: A [[bearer security]] held as a global note by a [[common depositary]] on behalf of clearing systems which has a CRTPA provision excludes the right of the end noteholder (in the clearing systems) to sue the issuer. Held: end noteholder could not pursue the issuer directly.
-*{{casenote|Chudley|Clydesdale Bank plc}} — a classic case where the CRTPA delivers a sound result where the [[common law]] of {{t|contract}} fails to.
+*{{casenote|Chudley|Clydesdale Bank plc}} — a classic case where the [[CRTPA]] delivers a sound result where the [[common law]] of {{t|contract}} fails to.
+For now, the [[Contracts (Rights of Third Parties) Act 1999]] remains unwanted. Shunned. Unloved; garnering only negative notice in the run-off [[boilerplate]] of our modern contractual frameworks. Perhaps it is time for a rethink?
 {{sa}}