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Tables of Contents for Privity
Chapter/Section Title
Page #
Page Count
Contributors
x
Preface
xi
Acknowledgments
xiii
Theoretical Issues Raised by the Privity Question
1
6
Peter Kincaid
Private or Public Justice
1
1
Flexible v. Formal Reasoning
2
1
Pragmatism v. Principle
3
1
Nature and Source of a Third-Party Right
4
1
Rights and Duties: the Question of Focus
5
1
Remedies
6
1
Summaries of Essays
7
21
Peter Kincaid
Privity---The End of an Era (Error)
28
32
Robert Flannigan
The Early Cases
29
3
Privity or Consideration?
32
2
The Entrenchment of the Doctrine of Privity
34
4
The Modern Cases
38
2
Privity Pro and Con
40
8
Privity and Contract Theory
48
11
Conclusion
59
1
Privity and Private Justice in Contract
60
22
Peter Kincaid
Introduction
60
1
The Law Commission's Proposals
61
2
The Law Commission's Justifications
63
8
Issues Raised by Justifications
71
9
Conclusion
80
2
Privity Reform in England
82
6
Peter Kincaid
Privity---A Rule in Search of Decent Burial?
88
16
Sir Anthony Mason
The Nature of the Privity Rule
88
1
The Purpose of the Privity Rule
88
3
Suggested Justifications for the Rule
91
2
The Rule is not Accepted or has been Modified Elsewhere
93
1
The Justification for Departing from the Rule
94
1
Other Reasons for Departing from the Rule
95
2
Trust of the Third-Party Promise
97
1
Complexity, Artificiality and Uncertainty
97
1
Adverse Consequences for Commercial Activities
98
1
Criticisms of the Case for Departing from the Rule
98
2
Other Criticisms of Reform
100
2
Conditions According to which Third-Party Enforcement is Permitted
102
1
Conclusion
103
1
Searching for the Principles Behind Privity Reform
104
22
Catherine Mitchell
Introduction
104
4
The Proposals for Reform
108
1
The Law Commission Proposals and the Orthodox Account of Contractual Obligation
109
5
Can the Orthodox Account Justify Third-Party Rights in Contract?
114
6
The Crystallisation Test
120
1
The Law Commission and the Modern Account of Contractual Obligations
121
3
Conclusion
124
2
Beyond Promissory Principle and Protective Pragmatism
126
21
Roger Brownsword
Dale Hutchison
Introduction
126
2
From Bilateral to Trilateral Promissory Situations
128
4
The South African Regime
132
10
The New English Regime
142
3
Conclusion
145
2
In Defence of the Third-Party Rule
147
25
Stephen A. Smith
The Third-Party Rule Defined and Defended
148
7
The Real Problems in Privity Cases
155
11
The Law Commission's Reform Proposals
166
4
Conclusion
170
2
The Third-Party Beneficiary Principle
172
27
Melvin Aron Eisenberg
Introduction
172
26
The Principle Governing Enforceability of Contracts by Third-Party Beneficiaries
173
12
Some Recurring Third-Party-Beneficiary Categories
185
13
Conclusion
198
1
Is Privity Worth Defending?
199
34
John Gava
Functionalism and Contract
201
2
Functionalism and Legal History
203
6
Contract in the Marketplace
209
6
Can Judges be Good Functionalists?
215
7
Contract as Part of the Common Law Constitutional Heritage
222
4
Does it Matter that Contract does not Matter?
226
3
Contract and Turbo-Capitalism
229
3
Conclusion
232
1
The Rights of Third Parties to Contracts: A Suggested Basis for Recognition
233
26
John Swan
Introduction
233
2
The Practical Pattern
235
11
A Principle for Recognition?
246
11
Conclusion
257
2
Reciprocity Beyond Privity
259
25
Simon Whittaker
Leasehold Covenants
263
2
Transferring Contracts of Employment
265
4
Undisclosed Principals
269
2
Package Holidays
271
2
The Death of the Parties: Privity and Personal Representatives
273
1
Freehold Covenants
274
3
A General Principle of Benefit and Burden Beyond Privity?
277
4
Conclusion
281
3
Privity and Exclusion Clauses
284
25
J.L.R. Davis
Introduction
284
1
The Benefit of an Exclusion Clause
285
17
The Burden of an Exclusion Clause
302
5
Conclusion
307
2
Privity, Property, and Pragmatism
309
28
Anthony Jon Waters
The History of the American Rule
310
8
Why the Need for a General Rule?
318
2
Can a Fuzzy Set of Reasons Constitute a Coherent Concoction? And Does It Matter?
320
5
Public and Private
325
2
The Nature of Contract
327
4
Conclusion
331
6
Appendix: Contracts (Rights of Third Parties) Act 1999
337
6
Bibliography
343
8
Cases
351
8
Statutes
359
1
Index
360