Privity of Contract Reform

Privity of Contract Reform It is important to emphasise that, while our proposed reforms will give some third parties the right to enforce contracts, there will remain many contracts where a third party stands to benefit and yet will not have a right of enforceability In 1996, the Law Commission published Privity of Contract: Contract for the Benefit of Third Parties. The proposals set out in this report were later legislated on the basis of, in the Contracts (Rights of Third Parties) Act 1999. The aim of this legislation was fundamentally to alter the law in relation to the concept of privity of contract, in order to grant third parties who were not parties to the original contract certain rights. The doctrine of privity of contract will be considered, and the effect on this of the C(RTP)A will be analysed. Finally, some consideration will be given to the question of whether the legislation has gone far enough in reforming the law of privity. It has historically been a fundamental and central principle of contract law in England and Wales that only the actual parties to a contract can have either contractual rights or duties conferred upon them. This was established at common law in the case of Tweddle v Atkinson (1861). The doctrine was confirmed in the early twentieth century in the case of Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd (1915). It is important at the outset to distinguish the doctrine of privity of contract from the possibility of a third party enforcing a collateral contract. These are quite distinct scenarios. Under the first (historically), the third party had no right to claim rights, nor to be held liable for the performance of contractual duties. In the second scenario, as was established at common law in the case of Shanklin Pier v Detel Products Ltd (1951), an actual contract might be found to exist between the third party and one of the parties to the contract. It is the former of the two situations with which the C(RTP)A 1999 is concerned. The two interests (as defined by McKendrick) which a third party can have in a contract to which he is not a party are both whether or not he can acquire rights under that contract, and whether or not the contract in question can impose any liabilities or obligations on him.[1] The most significant impact on this area was that of the C(RTP)A, which Trietel describes as ‘the most significant doctrinal development in English contract law in the twentieth century.’[2] What, then, is the purpose of privity of contract? It is, rather obviously, to do with the perceived injustice of imposing rights or obligations as between two parties who have had no dealing, at least no contractual dealing. It is clear that if X and Y enter a contractually binding agreement, Y has not made any agreement with Z, and therefore there is no rationale for entitling Z to take enforcement action against Y. The justification for the doctrine flows from the fact that contractual obligations, unlike tortious ones, are voluntary.[3] As Ibbetson states, the ‘rule that a third party could not enforce rights arising under a contract has been a feature of English law since at least the thirteenth century.’[4] The distinction between the acquisition of third party rights and obligations in contracts and other exceptions to privity of contract has already been mentioned. These exceptions can be expanded beyond collateral contracts (as seen in Shanklin Pier v Detel Prod ucts Ltd (1951)), to include a trust of a contractual right, whereby a ‘right may be transferred by way of property, as, for example, under a trust’[5]; the assignment of contractual rights to a third party (as in, for example, Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd (1994)); in cases of agency, where the agent is acting on his principal’s behalf, with the full authority of that principle, and concludes a contract (following Wakefield v Duckworth (1915), where the agent was operating within his authority, he ‘drops out of the picture and the contract is between the principal and the other contracting party); and cases where a claimant who is a third party suffers loss because of the negligent performance of the contract by a contracting party, as in the classic case Donoghue v Stevenson (1932). The doctrine of privity, then, was a foundational principle of English contract law until the advent of the Law Commission’s report in 1996. The opening quotation, taken from that report, explicitly seeks to limit the implications of the reforms that would later find their way into the C(RTP)A 1999, and the consideration above of the centrality of the doctrine of privity to contract law generally, shows why these limitations were considered necessary. What is the impact on this doctrine of the C(RTP)A, and does this do enough to reform the law on privity? The C(RTP)A states that ‘subject to the provisions of this Act, a person who is not a party to a contract may in his own right enforce a term of the contract if the contract expressly provides that he may †¦ or the term purports to confer a benefit on him.’ Furthermore, ‘the third party must be expressly identified in the contract by name, of a member of a class or as answering to a particular description but need not be in existence when the contract is entered into.’[6] There are, then, two separate tests for enforceability. The first test is described by Burrows as the ‘simplest’, and so it is; it is a simple question of fact whether the contract expresses the third party may enforce a term of it.[7] An example of this explicit authorisation of the third party to enforce a term of the contract is where the contract states ‘X [the third party] shall have the right to enforce the following terms of the contract†¦Ã¢â‚¬â„¢ The pro vision under this section is less restrictive than it might be because of the implications of section 1(3) which complements it, stating that the third party does not need to be named; it is sufficient for the third party to be the member of an identified class. The second test of enforceability under the Act is, again in the words of Burrows, is concerned with the ‘implied’ conferral of rights on third parties (as opposed to the express conferral discussed above).[8] The reasoning behind including this second test for enforceability can be broken down into 3 key areas. The first concerns the issue of implied rights in contracts, brought into the contract by implied terms. It is considered that to limit third party rights is akin to restricting implied terms. In other words, the parties’ intentions are not always their express intentions. The same can apply to third parties. The second area of justification for implied third party rights revolves around the uselessness of a reform confined to an express conferral of rights, unless the contracting parties included some ‘magic formula’ in the agreement so as to fall within the scope of the first test.[9] Cases where third parties would be unaffected by the C(RT P)A 1999 if the reform was confined to expressly mentioned third parties include Beswick v Beswick (1968), in which A contracted with B to pay money to C; and Trident General Insurance Co Ltd v McNiece Bro (1988), in which liability insurance was taken out to protect third parties to the contract. Finally, the implied conferral of rights on third parties has been justified by the fact that the aforementioned ‘magic formula’ will only be used in informed, well drafted contracts, which many will not be, particularly in the consumer sphere where good legal advice is not affordable. Do these two tests reflect the spirit of the opening quotation? It can certainly be seen how these two tests of enforceability have altered the doctrine of privity substantially, and in particular the second test of enforceability relating to implied third party rights. The Law Commission’s statement, however, suggests a balance, between maintaining privity for many contracts, and allowing third party rights in others. This balance can be seen to be aimed for by the existence of a rebuttable presumption of intention inherent in the second test of enforceability. This rebuttable presumption attains a further balance, between a sufficient degree of certainty between contracting parties, and sufficient flexibility. This flexibility was required in order for the C(RTP)A 1999 to apply to the potentially huge range of contracts for which it was intended. The presumption is set up by asking the question ‘when are the parties likely to have intended to confer a right on a third party to confer a term?’ If the answer is ‘where the term purports to confer a benefit on the expressly identified third party’, then the presumption is raised.[10] This, of course, can be rebutted by the ordinary contractual interpretation of an indication that the parties did not intend this. The balance can be seen to have been aimed for, at least, in the two tests of enforceability in the C(RTP)A 1999. An illustration of how the tests would be applied to decided cases is offered by Trietel, who identifies the case of Jackson v Horizon Holidays (1975) as falling within the scope of the second test under section 1(1)(b). He observes that ‘if the person making the booking [for a holiday on behalf of a third party] supplied the names of the other members of the family when the contract was made, those other members would probably acquire rights under subsection 1(1).; but no such rights are likely to be acquired if a person simply rented a holiday cottage without giving any information as to the number or names of the persons with whom he proposed to share the accommodation.’[11] This, then, can be seen to be a limitation to the effect of the reform legislation. It is suggested by McKendrick that section 1 simply gives the contracting parties an incentive to make their intention clear, which, again, returns to the issue mentioned above about the need for well-drafted contr acts.[12] The C(RTP)A 1999 is a highly significant piece of reform legislation, which fundamentally alters a central doctrine of English contract law. It can be seen to represent the superiority of the doctrine of freedom of contract over that of privity of contract. The significance of the Act is that while it maintains the previous exceptions to privity of contract, contracting parties will probably make increasing use of the Act rather than these, as a matter of certainty. The effect of the Act is somewhat limited, however, by the continuing requirement of clarity in the construction of the contract, whereby a presumption of an intention to confer rights on a third party can be rebutted. The effect of this, however, is simply to encourage a clarity of intention on the part of the contracting parties. BIBLIOGRAPHY Statutes Contracts (Rights of Third Parties) Act 1999 Cases Beswick v Beswick [1968] AC 58 Donoghue v Stevenson [1932] AC 562 Dunlop Pneumatic Tyre Co Ltd v Selfridge and Co Ltd [1915] AC 847 Jackson v Horizon Holidays [1975] 1 WLR 1468 Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 Shanklin Pier v Detel Products Ltd [1951] 2 All ER 471 Trident General Insurance Co Ltd v McNiece Bro (1988) 165 CLR 107 Tweddle v Atkinson [1861 – 1873] All ER Rep 369 Wakefield v Duckworth [1915] 1 KB 218 Secondary sources Burrows, A. (2000) ‘The Contracts (Rights of Third Parties) Act and its Implications for Commercial Contracts (LMCLQ 540) Ibbetson, D. (1999) A Historical Introduction to the Law of Obligations (Oxford: OUP) Law Commission (1996) Privity of Contract: Contract for the Benefit of Third Parties (Law Comm 242) McKendrick, E. (2003) Contract Law: Text, Cases and Materials (Oxford: OUP) Smith, S.A. (1997) ‘Contracts for the Benefit of Third Parties: In Defence of the Third-Party Rule’, 7 OJLS 643 Trietel, G.H. (1999) The Law of Contract, 10th Edition (London: Sweet Maxwell) Trietel, G.H. (2002) Some Landmarks of Twentieth Century Contract Law (Oxford: OUP) Footnotes [1] McKendrick, E. (2003) Contract Law: Text, Cases and Materials (Oxford: OUP), p1140 [2] Trietel, P. (2002) Some Landmarks of Twentieth Century Contract Law (Oxford: OUP), p47 [3] See Smith, S.A. (1997) ‘Contracts for the Benefit of Third Parties: In Defence of the Third-Party Rule’, 7 OJLS 643, p645 [4] Ibbetson, D. (1999) A Historical Introduction to the Law of Obligations (Oxford: OUP), p241 [5] Per Viscount Haldane in Dunlop Pneumatic Tyre Co Lt v Selfridge and Co Ltd (1915) [6] C(RTP)A 1999, ss1(1)(a),1(1)(b) and 1(3) [7] Burrows, A. (2000) ‘The Contracts (Rights of Third Parties) Act and its Implications for Commercial Contracts (LMCLQ 540), p542 [8] Ibid [9] Ibid [10] Ibid, p543 [11] Trietel, G.H. (1999) The Law of Contract, 10th Edition (London: Sweet Maxwell), p603 [12] McKendrick (2003), p1212

How to plan and provide environments and services support children Essay

Describe the factors to take into account when planning healthy and safe indoor and outdoor environments and services: All staff has a duty of care for children and each other within the setting. It is important that everybody is aware of government legislation regarding the schools Health and Safety policy in regards to potential risks and hazards and what should happen if an incident occurs. As health and safety is primarily common sense it becomes second nature when working with children to abide by the Health and Safety policy. When working within a school staff should always make sure that areas are fit to purpose prior to any learning or play activities this could mean doing a risk assessment to ensure areas are safe and free from any potential risks. If a risk is spotted it should be reported immediately or logged for attention. The factors to take into account are: Every child is an individual and progresses at different rates and each child has different needs which depend on their age and ability. When we plan activities we should think about ways in which way we can keep all children active and the layout of the room and the needs of the child if you have a baby in the room you would not allow toddlers to be running round. Also if children wanted to ride bikes this should be done outside with more space and under supervision. Some children may have more specific needs than other children if they are have a sensory impairment provisions should be put in place so the child will enjoy mainstream school as much as the next child. An adult could also have specific needs where a risk assessment may need to be done at some time like if the person is pregnant or impaired in some way. Individual support may be offered to families/carers that have different needs to others. When working with children we should always be aware of our environment as we would not allow a child to run around the classroom with scissors, if this did happen we would explain or ask the child why this is a dangerous thing to do. In any school yard there should be separate sides of the yard were say football is played rather than all the children playing in line of the ball as this may cause injury. Explain how health and safety is monitored and maintained and how people in  the work setting are made aware of risks and hazards and encouraged to work safely: Within school settings health and safety is monitored and maintained by the schools policies and procedures these are implemented by a governing body then must be carried out to the letter. Anybody running a place where members of public visit must have a duty of care and not let people be exposed to hazards that may cause illness or harm them. Visitors must follow the set guidelines to ensure the safety and well being of all children within the setting. Children who are being collected must be collected by a person known by the teacher unless prior information given, if a child requires medicine then this will be left in the office with a consent form received from the parents. Within school if a accident / incident happens then it is recorded and parents are informed of the child’s injury i.e. bumped head letter. W ithin schools there will always be a first aider available to deal with an injury. Confidentiality policy is always kept within school the only time confidentiality should be broken is when neglect or a form of abuse is suspected and the relevant authorities need to know. Risk assessments are carried out daily by teachers and all staff to ensure no potential risks or hazards. If anything is found it must be recorded and reported immediately relevant staff must be notified. Identify sources of current guidance for planning healthy and safe environments and services: All settings should have copies of the latest legislation as recorded in 1.4 they will also have their own policies and procedures. There is also a lot of information to be found on the internet: Health and safety executive Child accident prevention trust Department for education Explain how current health and safety legislation, policies and procedures are implemented in own work setting: When working with schools we have a legal responsibility to ensure the safety of all children and fellow colleagues as they are entrusted in our care listed below are the main policies: Policies and procedures regarding Health and Safety at Work are given to all staff including volunteers on the first day of employment  within the setting this is based on the Health and Safety at Work Act 1974. The main responsibilities of this act are that all buildings should be maintained to a high standard, designed with safety in mind. The environment should always be clean and tidy; all equipment should be stored away safely. As is good practice working practice should promote the health and safety of children. These acts also provides protection for employees by the workplace being a safe place and not pose a risk to employee’s health as stated in COSHH all hazardous substan ces and cleaning equipment stored away safely. Training should be provided for all employees on health and safety. PPE clothing should be provided free of charge. Certain injuries, diseases and incidents should be reported immediately to the Health and Safety Executive. First aid facilities and a first aider should be accessible at all times, within each setting there will be a safety representative who can be consulted regarding issues which may affect health and safety. Finally the legal duties of all employees must be responsible to take care of their own health and safety and that of others affected by their actions. All employees must cooperate with the health and safety at work act. This will be kept in the office and available to all. Fire precaution act 1971 and regulations :The fire authority will issue a fire certificate when happy that all correct procedures are in place .They also check the fire equipment and correct fire escapes and routes of departure COSHH (control of substances hazardous to health) this is monitored and maintained within schools by ensuring all chemicals and cleaning equipment is locked away in a cupboard away from all children. All chemicals must be clearly marked. RIDDOR 1995 (Reporting of Injuries, Diseases and Da ngerous Occurrence Regulations )this is a legal duty to explain work related deaths, any major incidents or injuries, work related diseases and dangerous occurrence. When carrying children or equipment always promote good practice. The Childcare Act 2006 this sets out the statutory framework for health and safety within all settings including that of the EYFS their standards are monitored by Ofsted. Product safety marking these must be (PAT tested) regularly and they will hold the kite mark to say they have been tested. Toys must carry a CE showing that the product meets European standards. Motor vehicles regulations 2006 seat belts must be worn at all times and booster seats provided for children under a certain height (135cm). Smoking ban 2007 EYFS  this includes a legal requirement to ensure all children are in a smoke free zone. The manual handling operations regulation act 1992Employers must ensure that correct guidelines are followed when lifting pupils or equipment. Hygiene legislation 2006 This covers the safe preparation and storage of food .All kitchen staff must hold a current food hygiene certificate .There must be posters displayed within the kitchen reminding staff of good practice i.e. different coloured chopping boards and how food is stored correctly. The early years foundation stage (EYFS) Statutory framework for eyfs 2008 ensuring all aspects of welfare for children is covered ,this includes safeguarding ,suitable people ,suitable premises and equipment .There must be correct documentation within the organisation. Other procedures which are in place to safeguard children are: Safety fence and locked gates disallowing children to leave when in outdoors areas. All doors which provide entry and access are locked and door handles unobtainable to children. All visitors must sign in and wear a badge if there for a while must be notified about health and safety. Children must be picked up by the named person unless by prior arrangement. Confidentiality maintained at all times unless abuse is suspected. Admissions where no child can be looked on more favourably than another. Accident/incident must be recorded if a child has a bump or injury then this must be sent home to parents explaining what happened if a major incident must be forwarded to relevant people. Taking of medic ines they must be stored correctly parents must sign a consent form to say what the medicine is and how much and when their child is allowed it. Within the setting there will be a notice in the staff room of which child is asthmatic or allergic to food or other things so each staff member can see.

Antebellum Steamboats

The steamboat craze happened during the turnpike craze. It was started by an engineer named Robert Fulton who installed a steam engine in a vessel that became known as the Clermont but was nicknamed Fulton’s Folly. One day in 1807, the little ship churned steadily from New York City up the Hudson River toward Albany which was 150 miles in 32 hours. The success was amazing. People could now defy wind, waves, tides, and downstream currents. Carrying capacity doubled.Keelboats went up the Mississippi at about 1 mph which was very expensive. The steamboats traveled over 10 mph against the current. By 1820 there were 60 steamboats on the Mississippi. By 1860 there were over 1000. Rivalries developed and led to racing. The steamboats led to an opening of the West and South which were filled with rivers. Until 1830 the products of the western region went southward and very little finished products made their way back west.The steamboat helped to send the finished products upriver and helped bind West and South together. This binding inspired the transportation revolution. In 1787, John Fitch built the first recorded steam powered boat in the United States. It was propelled by a row of oars on each side of the boat. He experimented with side-mounted paddle wheels, but in 1790 he used stern mounted oars instead. Fitch was the first to operate a steamboat commercially. It had scheduled transport of passengers and freight on the Delaware River in 1790.The first successful use of steam power to navigate a paddle wheel boat in America was in 1793. Samuel Morey used his steamboat on the Connecticut River. Robert Fulton became interested in steamboats at the age of 12 when he visited William Henry in 1777. He built and tested an experimental steamboat on the Seine River in 1803. Before returning to the United States, Fulton ordered a steam engine from Boulton and Watt, and built what the North River Steamboat. In 1807, the ship began passenger service between New York City and Albany.

Definition and Examples of Hypallage

A figure of speech in which an adjective or participle (an epithet) grammatically qualifies a noun other than the person or thing it is actually describing is called hypallage. Hypallage is sometimes defined more broadly as the inversion or radical rearrangement of normal word order, an extreme type of anastrophe or hyperbaton. Examples and Observations: I lighted a thoughtful cigarette and, dismissing Archimedes for the nonce, allowed my mind to dwell once more on the ghastly jam into which I had been thrust by young Stiffys ill-advised behaviour.(P.G. Wodehouse, The Code of the Woosters, 1938)Winter kept us warm, coveringEarth in forgetful snow, feedingA little life with dried tubers.(T.S. Eliot, The Waste Land)anyone lived in a pretty how town(with up so floating many bells down)(E.E. Cummings, anyone lived in a pretty how town)There one goes, unsullied as yet, in his Pullman pride, toying--oh, boy!--with a blunderbuss bourbon, being smoked by a large cigar, riding out to the wide open spaces of the faces of his waiting audience.(Dylan Thomas, A Visit to America. Quite Early One Morning, 1968)[I]n short, tis of such a nature, as my father once told my Uncle Toby, upon the close of a long dissertation upon the subject: You can scarce, said he, combine two ideas together upon it, brother Toby, without an hypallage.--Whats that? crie d my uncle Toby.The cart before the horse, replied my father.(Laurence Sterne, The Life and Opinions of Tristram Shandy, 1759-1767)Like enallage, hypallage is an apparent mistake. All changes of grammatical function are not valid cases of hypallage. Puttenham, who calls hypallage the changeling, points out that the user of this figure perverts meaning by shifting the application of words: . . . as he should say for . . . come dine with me and stay not, come stay with and me and dine not.The mistake becomes a figure by expressing a meaning, albeit an unexpected one. According to Guiraud (p. 197), The device is related to the aesthetics of vagueness; by suppressing the relationship of necessity between determined and determinant, it tends to liberate the latter.(Bernard Marie Dupriez and Albert W. Halsall, A Dictionary of Literary Devices. Univ. of Toronto Press, 1991) Shakespeares Use of Hypallage His coward lips did from their color fly.(Cassius in William Shakespeares Julius Caesar, Act 1, sc. 2)The eye of man hath not heard, the ear of man hath not seen, mans hand is not able to taste, his tongue to conceive, nor his heart to report, what my dream was.(Bottom in William Shakespeares A Midsummer Nights Dream, Act 4, sc. 1)The rhetorical figure Shakespeare uses here is hypallage, often described as the transferred epithet. His rudeness so with his authorized youth did livery falseness in a pride of truth. It is the rudeness that is authorized, not the youth; hypallage transfers the modifier (authorized) from object (rudeness) to subject (youth).(Lisa Freinkel, Reading Shakespeares Will. Columbia Univ. Press, 2002)