In a recent volume of this review ((2008) 12 EdinLR 334), Mathias Siems detected an upsurge of interest in comparative law. Contracts for a Third-Party Beneficiary is further evidence of the trend, strengthened by the fact that it is the first of a new series entitled “Studies in the History of Private Law”. The question of whether a third party beneficiary can acquire rights under a contract to which he is not a party has received the attention of the legislatures in several European jurisdictions in the last decade or so. The authors follow the history of the prohibition on third party claims within those jurisdictions, England and the Netherlands, along with France, Germany and, to a lesser extent, Spain. In this respect the book resembles another recent addition to comparative legal history, Ius quaesitum tertio (Duncker & Humblot, Berlin, 2008) edited by Eltjo Schrage, to which three of the current authors, and this reviewer, also contributed. At less than two hundred pages, this volume is small in comparison. Inevitably this means that it provides an overview. It nevertheless succeeds as an excellent point of entry to what at times can seem like a highly complex subject.
Contracts for a Third-Party Beneficiary has four contributors and is divided into three parts. The first, and largest, section follows the history of contracts for third party beneficiaries in mainland Europe up until the twentieth century. Jan Hallebeek begins by tracing the roots of the maxim alteri stipulari nemo potest (nobody can stipulate for another) from the classical period of Roman law to the time of Justinian. He demonstrates that, by the end of the Middle Ages, by different routes, both Civilians and Canonists had reached the position where it was possible to contract for a third party. Some important points are made about the difficult line Civilian writers were forced to tread between preserving the authority of Roman law and adapting to contemporary conditions without resorting to the sort of radical solution suggested by legislation in Castile. Harry Dondorp takes up the narrative in the seventeenth century, showing how the natural lawyers were influenced by a combination of earlier scholars and by contemporary legal practice. The subject, outside England, is...
