Privity in e-Contract in Nigeria

Abstract

The doctrine of privity of contract excludes a third party to a contract from claiming a right under a contract between specific parties that have voluntarily entered into the contract. It renders a third party a meddlesome interloper. That third party can neither enforce the contract nor be made liable in the contract. But there are exceptions to this general rule of the doctrine. These exceptions include the statuses of third party insurance, agency, trustee, and guarantor/surety. With the advent of e-contract it appears this doctrine can no longer hold sway across jurisdictions. By the nature of e-contract several parties may be involved in the formation of a contract between two parties. E-contracts are formed by the parties to it through the internet platform. Usually that platform is made up of different actors. These actors include the parties to the contract, Internet Service Providers (ISPs), Internet Content Providers (ICPs), manufacturers of hardware and software through which the parties connect and sometimes their agents as well. These actors hold the reins of the fundamental aspect of contract which is communication between the direct traditional parties to the contract. Any mistake by failure, negligence, or accident on the part of these actors could result in vitiating the contract or end up in breach of contract or fragrant frustration of the contract. Whereas a number of jurisdictions have one way or the other taken care of this innovation induced gap in their e-contract Nigeria is yet to close up the gap. The purpose of the paper is to re-appraise the doctrine and consider its status in contemporary contract, particularly e-contract, and suggest reforms in law of contract in that regard in Nigeria. The conduct of business transactions across the world is witnessing a new paradigm shift, an aspect of which this paper seeks to discuss and suggest a workable legal regime towards ensuring the purpose of law of contract by adopting the ‘liberal’ approach that recognizes the relationship between law and technology for the Nigerian jurisdiction.