ABSTRACT
the terms of his contract with B against T clearly raises the issue of burden. However, there are other cases in which A seeks to set up a defence based on the terms of his contract with B in order to defeat a claim made against him by T.74 The view expressed by the Law Commission initially seems to suggest that this last group of cases raises the issue of burden,75 but there may be instances in which the contract between A and B confers a benefit on T, subject to a condition. The Law Commission give the example of a contract between A and B which confers on T a right of way, subject to a condition that T should keep it in a good state of repair.76 Similar problems might also arise where a benefit is conferred on T, but is subject to an exemption clause which limits T’s ability to sue A in respect of the benefit conferred. On this matter the Law Commission state that T’s right to enforce the benefit must be read subject to the exemption clause.77 If the 1999 Act is to apply in such a case, it would appear that the burden element will have to be conflated with the related benefit conferred by A and B on T.
