chapter  7
26 Pages

Third party protection under English law

WithCarlo Corcione

This chapter is about the English legal tradition surrounding the topic. The reader will be guided through the history of the issue under English law through the topics of agency, bailment, privity, and consideration up to the Contract (Right of Third Parties) Act 1999.

In summary, English law and third party protection do not sit comfortably with one another. Consideration may indeed be ‘too firmly fixed to be overthrown by a side-wind’, but it has nonetheless been circumvented.

Bailment, agency, protection clauses, and the Contract (Right of Third Parties) Act 1999 are all geared towards attaining the same objective, but none of them provide third parties with adequate, up-to-date, and juridically justified protection.

Although the Contract (Right of Third Parties) Act 1999 improves the situation of third party protection, it still relies on the presence of an implied contract to function. The Act seems to have placed the Himalaya clause on a statutory footing but the four criteria outlined Lord Reid must still be satisfied.