intend the third party to have such a right. For these purposes, it seems that there is a rebuttable presumption of enforceability and it will be up to the party contesting liability to prove that there was no intention to confer a benefit on the third party. In seeking to rebut this presumption, it is important to emphasise that what s1(2) provides is that it must be demonstrated that the parties to the contract did not intend to confer a benefit on T. Thus, it will be insufficient for a contracting party to show that he, personally, did not intend to confer a benefit on T. Instead, it must be established that A and B did not intend to confer that benefit. For the purposes of s1(2), it is important to emphasise that the relevant term must purport to confer a benefit on the third party. Thus, it will not be sufficient for the third party to demonstrate simply that the relevant term does, in fact, confer a benefit on him. For example, if A employs B to ‘cut the hedge adjoining T’s land’, T would undoubtedly benefit from B’s performance, but there is nothing in the relevant contractual term which purports to confer a benefit on T. A more difficult case, however, might arise

doi:10.4324/9781843141518-316

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intend the third party to have such a right. For these purposes, it seems that there is a rebuttable presumption of enforceability and it will be up to the party contesting liability to prove that there was no intention to confer a benefit on the third party. In seeking to rebut this presumption, it is important to emphasise that what s1(2) provides is that it must be demonstrated that the parties to the contract did not intend to confer a benefit on T. Thus, it will be insufficient for a contracting party to show that he, personally, did not intend to confer a benefit on T. Instead, it must be established that A and B did not intend to confer that benefit. For the purposes of s1(2), it is important to emphasise that the relevant term must purport to confer a benefit on the third party. Thus, it will not be sufficient for the third party to demonstrate simply that the relevant term does, in fact, confer a benefit on him. For example, if A employs B to ‘cut the hedge adjoining T’s land’, T would undoubtedly benefit from B’s performance, but there is nothing in the relevant contractual term which purports to confer a benefit on T. A more difficult case, however, might arise

ABSTRACT

For the purposes of s 1(2), it is important to emphasise that the relevant term must purport to confer a benefit on the third party. Thus, it will not be sufficient for the third party to demonstrate simply that the relevant term does, in fact, confer a benefit on him. For example, if A employs B to ‘cut the hedge adjoining T’s land’, T would undoubtedly benefit from B’s performance, but there is nothing in the relevant contractual term which purports to confer a benefit on T.85 A more difficult case, however, might arise where A contracted with B to perform some service specifically referable to T’s property, since, in such a case, there might be a strong presumption that the contract was intended to benefit T, even though there was no specific right of enforceability conferred on T. Thus, in cases like Linden Gardens Trust v Lenesta Sludge Developments Ltd,86 there is clear evidence that the work to be done would ultimately benefit the owner of the land, when property was eventually transferred. However, it would be difficult to argue that the relevant term of the contract was intended to confer a benefit on the ultimate owner, which he was entitled to enforce. One way in which A and B can make their position clear would be by way of some specific provision in their contract to the effect that either T has or does not have a right to enforce the term of the contract which purports to benefit him. Difficulties will arise, however, in cases in which A and B do not make it clear what their intentions are.