Has the Contracts (Rights of Third Parties) Act 1999 gone far enough in reforming the English law of privacy?

Hajar B.

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Has the Contracts (Rights of Third Parties) Act 1999 gone far enough in reforming the English law of privacy?

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Résumé du document

Under the doctrine of privacy, which became entrenched in English law in the latter half of the 19th century , contractual rights and liabilities are limited to the parties to the contract. The mounting criticisms and arguments for reform have led to the Contracts (Rights of Third Parties) Act 1999 , an important statute which modernizes the law of contract and diminishes the relevance of complex case law dealing with the rule of privacy and its exceptions. However, while the Act has introduced a substantial exception to the privacy rule, it has left the rule intact for cases not covered by the Act . Therefore, for a number of cases, third party claims will still have to be based on pre-existing statutory and common law exceptions. This essay shall examine the problems caused by the privacy rule and the impetus for reform; it shall set out the circumstances in which third parties may or may not rely on the Act; finally, it shall analyze the incomplete nature of the Act in the context of the reform of the rule of privacy.

Sommaire

Introduction
The 1999 Act: The creation of a wide-ranging exception to the doctrine of privacy
1. The doctrine of privacy: Rationale and arguments for reform
2. The scope of the 1999 Act: Under what conditions can third parties obtain a right to enforce contracts?
An incomplete reform: The limits of the 1999 Act
1. Exclusions and limitations: The cases not covered by the Act
2. The 1999 Act and the pre-existing exceptions to the privacy rule: The effect of the Act on judicial development
Conclusion

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Extraits

[...] Law Commission Report No 5.10 - Ibid, Jackson v Horizon Holidays [1975] 1 W.L.R Darlington Borough Council v Wiltshier Northern Ltd and another [1995] 1 W.L.R Alfred Mc Alpine Construction Ltd v Panatown Ltd [2001] 1 AC 518 Op. Cit. [2001] 1 AC 518. Law Commission Report No 7.54 ; see also J. Beatson, Ansons' Law of Contract, pp. 450-451: Beatson argues on this point that consumer protection involves matters of policy which are more suitable for a legislative than a judicial determination. R. Upex and G. [...]

[...] Chen-Wishart, Contract Law, pp. 635-637; R. Stone, The Modern Law of Contract, pp. 139-146. Law Commission Report No 3.6 and Law Commission Report No S. The Act also sets up under s. a rebuttable presumption that if the parties confer a benefit on a third party, they intend that the third party is empowered to enforce the term that created the benefit. Nissin Shipping Co v Cleaves & Co Ltd [2003] EWHC 2602, cited in M. [...]

[...] The 1999 Act has perhaps not gone far enough in reforming the doctrine of privacy and has left a significant role for the common law. This can certainly seem problematic in terms of legal coherence and certainty. Yet a detailed legislative scheme covering all the situations raising privacy issues, which would made common law precedent and further judicial development redundant, would probably be contrary to the common law approach towards codification of the law and the overarching importance of judges in making flexible and just law. [...]

[...] The Act also provides in s.7(1) that it does not affect any rights or remedies that the third party has apart from its provisions, thereby preserving the existing statutory and common law exceptions to the rule. If a third party does not satisfy the Act's requirements or falls within one of the exceptions, he may nonetheless base his claim on pre-existing exceptions. The rights of a third party under the Act thus appear to be supplementary to rights the third party has under the common law or other statutes.[19] This makes it possible for a third party to invoke both the Act and a pre-existing statutory or common law exception: Treitel gives the example of a situation where the same facts not only satisfy the requirements of s but also give rise to a trust in favour of a third party.[20] As noted by several academics, invoking and enforcing third party rights apart from the Act could be more advantageous to third parties.[21] The fact that third parties will still stand to benefit under other statutory or common law exceptions to the privacy rule surely diminishes the overall importance of the Act in its reform of the privacy rule. [...]

[...] Stone, The Modern Law of Contract, p M. Furmston, Cheshire, Fifoot & Furmston's Law of Contract, p If the act applies the third party is allowed under s1 to enforce a term of the contract in just the same way as a party to the contract. J. Beatson, Ansons' Law of Contract, 28th edition (Oxford: Oxford University Press, 2002), p G.H. Treitel, The Law of Contract, 11th edition (London: Sweet & Maxwell, 2003), p J. Beatson, Ansons' Law of Contract, p. 421; G.H. [...]

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