A JUS QUAESITUM TERTIO BY WAY OF CONTRACT IN ENGLISH LAW
| Published date | 01 July 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00368.x |
| Author | F. E. DowrickM.A. (Oxon) |
| Date | 01 July 1956 |
A
JUS
QUAESITUM
TERTIO
BY WAY
OF
CONTRACT
IN ENGLISH
LAW
FORTY
years ago, in the House
of
Lords
in
Dunlop
v. Selfn’dgc,’
Viscount Haldane
L.C.
laid down dogmatically that
our
law knew
nothing
of
a
jus quaesitum tertio
arising by way
of
contract. Since
that pronouncement English judges
a
and textbook writers have
accepted
it
as a sound statement
of
the positive law
of
England
regarding contracts which contain promises for the benefit of third
persons, subject to well-established exceptions such as agency,
assignment, negotiable instruments, constructive trusts, covenants
running with land and certain contracts now governed by particular
statutes. But more than twenty years ago a vigorous attack was
launched upon this statement
of
principle by Professor C~rbin.~
In
1987
the Law Revision Committee, under the chairmanship
of
Lord Wright, criticised adversely the principle
b
question and
recommended a substantial alteration in the lam by statute.‘ But
while Parliament has remained silent
on
the subject, since the war
in the courts some judges have been reconsidering the principle.
Since
1949,
in a series
of
cases in the Court
of
Appeal, Lord
Justice Denning has been elaborating a doctrine
of
third party
rights arising by way
of
contract, and in
1954
in
a High Court
case
Mr.
Justice Devh adopted and followed this doctrine.
In
this paper
it
is proposed to examine this latest judgedeclared
doctrine, first considering in isolation the dicta outlining
it,
then
cxamining them in the context
of
the cases and then with regard
to relevant precedents, with the object of determining the authority
of
the dicta.
In
the latter part
of
the paper
it
is
proposed to
[I9151
A.C.
847,
at p.
853.
2
e.g.. Vandepitte
v.
Preferred Accident Insurance Corporation
of
New
York
[1933]
A.C.
70,
at p.
79,
per
Lord Wright:
Harmer
V.
Amstrong
[1934]
Ch.
65,
at
.
86,
per
Lawrence
L.J.
3
Anson
on
$ontract,
16th
ed.
(1923),
at p.
279;
Cheshire and Fifoot on
Contract,
4th ed.
(1956),
nt
p.
366.
4
”
Contracts
for
the Benefit
of
Third Persons
”
(1930) 46
L.Q.R.
la;
see
oleo
(1933) 49
L.Q.R.
474,
and
Current
Legal
Problems,
1955, 191.
Sixth Interim Report, Cmd.
6449,
section
D.
The Committee
formulated
two
propo~~tl~ for legisintion
:
paras.
48
nnd
49-
its exprees terms purports
to
confer
a
benefit
directly
on
a
third. party, tie third party
shall
be entitled
to
enforce the
provision in his own name, provided that the promisor shall be entitled
to
raise
ns
against the third party
any
defence that would have been did ogroinet
the
prcmisee. The rights
of
the third pnrty
shall
be subject
to
cancellation
of
the
contract by the mutual consent
of
the contracting parties at
any
time before
the third party
has
ndopted it either expresely or by conduct.”
(ii),?hnt the Married Women’s Property Act,
1882,
8.
11,
be extended
to
cover
all
life, endowment and education policies,
in
which
a
particular
beneficiary
is
named.”
(i)
“
Where
a
contrnct b
874
JULY
1986
A
JUS QUAESITUM TERTIO
BY
CONTRACT
875
consider the subject of the
jus
quaesitum tertio
comparatively and
on
principle, in an attempt to determine whether this doctrine is a
desirable development in our law.
Lord Justice Denning’s doctrine of third party rights crLated
by
contract is set out in his judgments in three Court of Appeal
cases:
Smith and Snipes Hall Farm, Ltd.
v.
River Douglas Catch-
ment Boardye Drive Yourself Hire
Co.
(London), Ltd.
v.
Strutt
and Another,’
and
Adler
v.
Dickson and Another.“
In
the first-
mentioned caseYa the doctrine was propounded in these general
terms-
“
. .
.
a man who makes a deliberate promise which is intended
to be binding, that is to say, under seal
or
for good considera-
tion, must keep his promise; and the court will hold
him
to
it,
not only at the suit of the party who gave the consideration,
but also at the suit
of
one who was not a party to the contract,
provided that
it
was made for his benefit and that he has a
sufficient interest to entitle him to enforce
it,
subject always,
of course, to any defences which may be open
on
the merits.”
Devlin
J.
referred to the doctrine in
Pyrene
Co.,
Ltd.
v.
Scindia
Navigation
Co.,
Ltd.l0-
“There is nothing novel about the idea of a third party
coming in to enforce a contract
.
. .
as a beneficiary.
Denning
L.J.
in
.
. .
(River Douglas
case,
supra)
reviews the
main categories into which such third parties commonly fall.”
“This is the sort of situation that is covered by the wider
principle; the third party takes those benefits of the contract
which appertain to his interest therein, but takes them, of
course, subject to whatever qualifications with regard to them
the contract imposes.”
The doctrine has not been left by these judges in this very
general
form.
They have instanced its numerous particular appli-
cations to concrete situations.l’
Example No.
1.
A
covenant made with the owner of land,
for its benefit, runs with the land
so
as to be enforceable
against the covenantor not only by the original covenantee but
also by his successors in title and by persons deriving title
under them.
la
Example
No.
2.
An
assignee of the benefit of
a
contract,
it it it
and later, at p.
426,
the learned judge added-
a
[1949] 2
K.B.
500.
[1954] 1
K.B.
250.
8
[l955] 1
Q.B.
158.
[1949] 2
K.B.
600,
at
p.
614.
10
119541 2
Q.B.
402,
at
p.
422.
11
€30
far
as
the
following
examples
con
be supported by authorities the latter
will
be cited
in
each
note within
square
brackets.
Riuer
Douglas
case,
supra,
at
pp.
514
and
616,
per
Denning
L.J.
[The
Prior’s
CaUe
(1369)
Y.B.
48
Edw.
8,
pl.
14,
fol.
3
A;
Coke
on
Littleton,
at
pp.
3849
et
seq.:
Rogers
V.
Hosegood
[1900]
2
Ch.
388; Law
of
Property Act,
1925,
8.
78
(1):
Riuer
Douglas
case,
supra,
per
curium].
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