Thorough examination

Privity of contract, in the famous words of Viscount Haldane LC in the Dunlop Pneumatic Tyre case, is the principle that ‘only a person who is a party to a contract can sue on it’.

For an idea that has been around in some form since the codification of Roman law, it is of note that its modern incarnation was only expressed in two cases decided either side of the turn of the 20th century. Incrementally, as judge-made law does, the concept was elucidated, somewhat fleshed out, and almost immediately challenged – what about third parties for whom the benefit of the contract is made? Then, as the century expired, the privity rule was heavily contextualised in light of the enactment of the Contracts (Rights of Third Parties) Act 1999. 

This second edition brings the commentary up to date (at least to late 2024). The first two chapters set the scene, giving the reader a historical rundown of how the common law position came to be. The book is concerned less with the history of the privity rule – Tolhurst points out that many legal historians have explored the area in extensive detail elsewhere – and more with the problems faced by practitioners. To that end, the book looks at privity in different contexts: tort, bailment, agency, trust and so on. As one would expect, leading cases are canvassed throughout.

By way of further example, for the general practitioner, there is a useful chapter on English statutory exceptions to the privity rule which covers insurance, property and various commercial instruments. The final chapter is a comparative exercise, reviewing developments throughout the common law world, highlighting the different approaches taken and pace of change between, for example, New Zealand, Singapore (pictured) and the UK. This will no doubt be useful for cross-border specialists as well as academics who have a more theoretical interest. 

The book is thoughtfully laid out and has clearly received significant editorial time. Every new chapter begins with its own small table of contents, meaning navigation is easy, especially given each chapter is generally divided into no more than 10 or so subsections and often fewer. It is a stylistic point, but one which stands out and means it is more readable than many monographs and more user-friendly as a reference text.

In summary, this volume is erudite yet accessible, and a valuable addition to any law library.

Tom Proverbs-Garbett is the director of TrustPoint Governance and the author of Being a Trainee Solicitor: How to Survive and Thrive