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

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-It is now lost in the mists of time, but once upon a time there must have been a reason why the international capital markets was so collectively hostile to the [[Contracts (Rights of Third Parties) Act 1999]]
+{{a|contract|
+{{image|Third man|jpg|Why the hostility towards third parties, [[counsellor]]? What did they ever to do you?}}
+{{subtable|'''Sample [[CRTPA]] clause''', if you ''really'' must:<br>“No-one who is not a party to this agreement has any rights under the [[Contracts (Rights of Third Parties) Act 1999]] to enforce any of its terms.”}}}}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.
+Look, who could possibly object to that worthy goal?
-Most likely the lawyer’s instinctive, huffy, reactionary petulance — which (while poor) was understandable in 1999, but ladies and gentlemen, come on: haven't we grown out of that now?
+Well, the community of English lawyers did, most likely, through its instinctive, huffy, reactionary petulance — perhaps understandable in 1999 but, ladies and gentlemen, come on: haven’t we grown out of that now?
-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.
+So the great canon of capital markets [[boilerplate]] is shot through with hostility to this poor act. There’s Para {{gmslaprov|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 finally got away with it.
-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. If you don’t wish to confer a benefit on a third party then ... ''don’t''. But if you have reason to, why not? To be sure 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 well-being of his erstwhile friend, or just disinclined to take action for fear of upsetting a mendacious client. The usually advanced objections: uncertainty; indeterminate liability and so on, surely fall upon stony ground: if an obligor has given away a right, then it should be compelled to perform it. Does it matter ''who'' it should be that is allowed to bid it do what it has promised to do?
-*{{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.
-{{egg}}{{draft}}
+So, set the beneficiary free to fight his own battles, independent of the whims of his [[Privity of contract|privitous]] friend!
+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]] would have delivered a sound result where the [[common law]] of {{t|contract}} fails to. A fraudster who takes your money and ''says'' he’ll put it in the bank for you, but puts it in his own bank account instead — the contract to do this is between fraudster and bank; scamee has no privity so could the — ? Well, it is a nice idea, and the CRTPA neatly solves it, with no real loss.
+Another place where CRTPA remains unloved is in the terms and conditions of [[Bearer security|bearer debt securities]]. This seems especially strange: since a bearer note is unilateral and, by its very terms, intended to benefit whomsoever in the world should [[for the time being]] ''bear'' it, exactly whom is one trying to exclude with this [[boilerplate]]? And how — presuming that person did ''not'' bear it (if she did, she would not be a third party) — would such a person formulate a claim that the issuer intended to benefit her?
+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}}
+*[[Contracts (Rights of Third Parties) Act 1999 clause]] —our [[boilerplate]] guide
+*[[Contracts (Rights of Third Parties) Act 1999 - GMSLA Provision]]
+*[[...and any of its Affiliates and any of its, or their, directors, officers, employees, contractors or professional advisers]]
+*[[Privity of contract]]
+{{egg}}
+{{ref}}