Doctrine Of Privity Research Articles

Demurrage Under Pakistani Law: Legislative Framework, Challenges, and Strategies to Protect Client Interests in Pakistan

The word Demurrage itself explains the cost imposed on the consignee or owner of goods for delays beyond the free days which is called lay time in legal terms but due to late clearance and many more related issues shipper and consignee both suffer. Although, the courts of Pakistan grant a stay to the consignee for non-payment of demurrage under section 14-A custom Act yet ignore the fact that the doctrine of privity also operates in contracts, as both the shipper and owner of the goods sign the terms and conditions regarding the payment of demurrage, as in every contract lay time is always provided to the owner of the cargo. However, every cargo owner is not always entitled to a stay on nonpayment. Here the barrier or issue of less trade arises. This article explores the legal framework for Demurrage and the issues involved in its application in Pakistan.

A QUALITATIVE STUDY ON THE DOCTRINE OF PRIVITY TO CIRCUMVENT ITS EFFECT ON SUBCONTRACTOR’S PAYMENT CLAIM

In common law jurisdictions, the doctrine of privity has been criticised by the judiciary and academic commentators, particularly the second rule of doctrine, which states that a person who is not a party to the contract cannot sue on it to obtain promised performance, although the contract has been formed with the intention to benefit him. In certain circumstances, this rule may produce unfair and injustice result to the third party of a contract, as it prohibits the third party from enforcing the right to get benefits conferred on them. The doctrine of privity becomes relevant in the context of tendering procedures when subcontractors, who are not direct parties to the main construction contract, are involved. Hence, the aim of this paper is two-fold: to highlight the difficulties of the existing legal mechanism associated with privity rule and to suggest possible ways to circumvent the effect of the doctrine of privity on subcontractors’ payment claims in the Malaysian construction industry. By adopting the socio legal research approach, the impact of the doctrine of privity, the difficulties of the existing legal mechanisms, and the need for a possible law reform were examined. The findings were also validated by conducting semi-structured interviews with five construction law experts. Among others, the findings showed that enhancement to the existing legal mechanisms and statutory intervention can effectively circumvent the privity rule and protect the subcontractor’s right for the payment claim.

A Revisionist History of Products Liability

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity arguments, and contract was not their paradigm for understanding a producer’s relationship with users of its products. This analysis has implications for how we view the development of the common law today. And it serves as a warning not to rely on potted histories from casebooks in determining what the common law was in the past.

Contextualizing the Doctrine of Privity of Contract in Relation to International Investment Arbitration

International investment arbitration, though within the sphere of public international law, is organically linked with conflict of laws and private contract law. International investment arbitration will, therefore, always, follow the same trajectory as the contract law of the country whose laws parties have chosen to govern their contract or relationship. Scholarly conversation now emerges with regard to third-party rights in municipal contract law and the dwindling influence of the doctrine of privity in both municipal and international laws. This work aims at examining the effect of the evolving legal order relating to privity of contract on international investment arbitration. The contract law of the country, which the parties have chosen as the lex loci , undoubtedly, impacts the conduct of the arbitration between the parties; especially, as it relates to third-party rights to join in arbitration, enforcement of arbitration agreements, and enforcement of arbitral awards. Qualitative research methodology is adopted in the work and this enabled the interrogation of previous literature on the dwindling status of the doctrine of privity and emerging third-party rights in municipal contract law. The selected research methodology particularly enabled the researchers to examine the effect which emerging third-party rights may have on international investment arbitration. The work finds: (i) that international investment arbitration and private contract law are, indeed, organically connected and that this connection is causal; (ii) that international investment arbitration will, continually, follow the same trajectory as the domestic contract law of the country whose laws parties have chosen to govern their contract or relationship; and (iii) that the national contract laws of some countries now contain third-party rights, which provide leeway for participation by third parties in arbitral proceedings in certain instances. The work recommends that the inroad of the privity of contract doctrine in international investment arbitration is salutary and that maximizing the gains of this massive inroad necessitates increased legislative intervention, which will empower third parties who are able to show prima facie that the outcome of the arbitral proceedings will affect them one way or the other, to join in such arbitral proceedings in order to protect their rights or interests. This is especially so in international investment arbitration ensuing from the petroleum and mining sectors, where investment activities fundamentally disrupt the lives of locals and violate their internationally recognised human rights. Keywords : Arbitration, Contract, International law, Privity, Third-Party Rights DOI: 10.7176/JLPG/127-04 Publication date: December 31 st 2022

독립계약자에 대한 히말라야 약관의 확대 적용

Purpose - The purpose of this paper is to review the doctrine of privity of contracts under common law and to analyze some issues of Himalaya Clause cases under carriage of goods by sea in United States. Design/Methodology/Approach - This paper studies scopes, application, and requirements of the Himalaya Clause by analyzing cases in the United States, such as Robert C. Herd & Co., Inc., v. Krawill Machinery Corp., 359 U.S. 297 (1959), and Norfolk Southern Railway Co. v. James N. Kirby, Pty. Ltd., 125 S.Ct. 385 (2004). Findings - This paper confirms that contracts for the carriage of goods by sea must be construed like any other contracts: by their terms and consistent with the intent of the parties. Also, the paper finds that an independent contractor such as a stevedore, a terminal operator, an inland carrier, and a railroad, could be the beneficiary of a valid Himalaya Clause by analyzing U.S. courts cases. Research Implications - This paper sheds light on some legal issues surrounding the Himalaya Clause by comparative review. Also, it offers practical implications and suggestions that revise some articles of the Korean Commercial Code for the extended application of the Himalaya Clause.

Challenges in Claiming Under The Doctrine of Privity Contract in Malaysia: The Issue of Halal

The doctrine of privity provides that only the contracting parties to a contract incur rights and obligations under the contract. Third parties cannot sue or be sued under a contract. Thus, if a manufacturer who sells a product to a seller who then sells it to a consumer who is injured by the product, the consumer could sue the seller based on the contract of sale between the seller and the consumer. The consumer cannot sue the manufacturer because there is no contract between the consumer and the manufacturer. This article thus addresses the question of the extent to which the doctrine of privity can give rise to liability on the part of the manufacture or the seller on the issue of halal. The findings of this study suggest that the doctrine of privity has some weaknesses that need to be addressed in order to provide better consumer protection on the issue of halal.

Irreconcilable perspectives like in an Escher’s drawing? Extension of an arbitration agreement to a non-signatory state and attribution of state entities’ conduct: privity of contract in Swiss and investment arbitral tribunals’ case law

Abstract A matter of perspective? When a dispute arises and on the government’s side a non-signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-signatory state or the conduct of a state entity be attributed to the state. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

FOB seller under Chinese law and privity of contract in carriage of goods by sea

ABSTRACTThe FOB (Free On Board) seller under Chinese law (FOB seller) has no contractual relation with the carrier but is recognized as the shipper under Chinese law. The FOB seller thus has the right to demand the issue of bill of lading from the carrier and the rights of suit against the carrier in Chinese judicial practice. These exceptions to privity of contract in carriage of goods by sea are inconsistent with the globally recognized doctrine of privity of contract. This inconsistency has caused troubles to international shipping and trade transactions. It is submitted that the doctrine of privity of contract should be respected and the exception of the FOB seller shall be limited in carriage of goods by sea.

Recalibrating Contract Law: Choses in Action, Global Value Chains and the Enforcement of Obligations Outside of Privity

Commerce, in its pre-industrial form, consisted overwhelmingly of one-to-one relationships. Throughout the latter half of the twentieth century, however, technological and political advances led to the outsourcing and offshoring of many of the activities necessary for the production of goods. The formerly one-to-one relationships expanded exponentially, and global supply chains were born. In today’s world, global supply chains have stretched even further into what are now commonly called global value chains, sometimes comprising hundreds and even thousands of firms. Historically, contract law has struggled with the rise of global supply chains. This struggle has stemmed from the privity doctrine, which holds that normally only the parties to a contract can enforce it. In global supply and value chains — where multiple contracts link together — privity imposes obstacles in at least two significant ways. This Article examines how firms can enforce obligations against members of a value chain outside of the restrictions of privity in order to increase commercial efficiency and facilitate the enforcement of higher labor and environmental standards. In particular, the article focuses on choses in action, a form of incorporeal property in common law jurisdictions such as the United States, Canada, Australia, and England. Basic rules of property law and equity provide that under appropriate circumstances, a chose in action can be assigned. Once this occurs, the assignee can proceed against the defendant and obtain, on its own behalf, whatever recovery would have been available to the assignor. The Article explains choses in action and illustrates the potential significant impact of this system upon the operation of global commerce.

BINDING EFFECT OF ARBITRATION CLAUSE TO THIRD PARTIES: PRIVITY OF CONTRACT DOCTRINE Vs. PIERCING THE CORPORATE VEIL

The arbitration agreement is the legal basis for the arbitration forum to examine and adjudicate the dispute which arose from a private relationship where the parties agree to settle the dispute in arbitration forum. As an agreement, the arbitration agreement still applies the principles of contract, including the principle of privity of contract. In the doctrine of privity of contract, an agreement is only binding and have legal effect only to the parties, the agreement in principle, cannot provide profit or loss to a third party. In the arbitration agreement, only the parties are bound by the arbitration agreement that can become parties to the case investigation. However, in the development of arbitration practice also shows that a third party, not a signatory to the arbitration agreement can be held accountable through an examination of the arbitration case. Such a situation is possible if the third party is resident as a holding company or shareholder of a limited liability company, in which the limited liability company is bound by an arbitration agreement, and the holding company or shareholder proven to perform actions through a subsidiary or a limited liability resulting harm the other party.

The Position of the UN Conventions to Determine and Guarantee Human Rights

In the present era, providing human rights represents the governance quality of a government and human rights treaties are criteria for its assessment. Also the UN human rights conventions, because of their international nature in the past seven decades, have been the main representative to reflect man's fundamental demands. Now the main question is that to what extent these conventions are remarkable and effective in order to explain and guarantee human rights in the international arena? The author believes that the conventions are the most important international mechanisms to identify human rights which compared to the past history of mankind have offered the most comprehensive international regulations in order to reflect the fundamental human rights. But then, two main factors undermined the effectiveness of the conventions. The first factor is intratextual drawbacks of the conventions which are divided into three drawbacks: reservation, withdrawal and arbitrary essence of accepting the committees’ competence. The second and more important factor is the reasons out of the conventions which are divided into two categories: the doctrine of privity of contract and disobedience by some governments under the ideological or moral reasons. The first factor can be addressed by the secondary amendments. However, the big challenge is the second factor which mechanism to settle it are to inform the international community about the importance of the UN human rights conventions, creating intersubjective understanding and eventually accepting the supremacy of international human rights over internal law.

The Expanding Circle of Contract Law

People and corporations are increasingly held liable in private law for the external effects of their actions, in particular in cases that involve some fundamental aspect of “justice” such as severe violations of labour standards or threats to the environment. These public interests are traditionally guarded by the state, but are now increasingly enforced by private individuals, in particular in cross-border situations where the injustice takes place in a “far-away” country. This contribution explores what is the potential of contract law in dealing with “private law justice across borders.” It asks whether the doctrine of privity of contract should be traded in for an approach that better takes the externalities of contracts into account. It is argued that current contract law is ill-suited to deal with this challenge and should adopt new techniques to expand the circle of people contract law seeks to protect.

Privity in e-Contract in Nigeria

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.

The Application of the Doctrine of Privity of Contract to Insurance Contract in Nigeria

By the nature of Insurance Contracts, the insurer undertakes to indemnify the insured in the event of the happening of unforeseen occurrences. For liability Insurance contracts, the insurer undertakes to indemnify the insured in case of liability to a third party, thus the insurance contract is taken for the benefit of the third party. The critically question then arises, can the third party sue the insurer directly for the liability guaranteed under the contract of insurance? The long established common law doctrine of privity of contract answers this question in the negative, however statutory provisions has modified the applicability of this principle in relation to insurance contracts in Nigeria. The aim of this Article is to examine the statutory provisions that whittled down the effect of the doctrine of privity of contract to insurance contract in Nigeria and the judicial interpretation given by the Courts to these provisions to determine how well there have protected third parties.

Into the Frying Pan: Standing and Privity under the Telecommunications Act of 1996 and Beyond

Any legal system must make a trade-off between two components of optimal law enforcement. The first requires all persons injured by some wrongful conduct to recover full damages in order to create optimal incentives for primary conduct. The second requires some limit on the number of potential of wrongful suits arising out of wrongful conduct, in order to contain the administrative and error costs of legal enforcement. In most practical settings, the second of these concerns has proved more important than the former, which has led to the creation of a practical standing doctrine recognized in the Supreme Court's decisions in Illinois Brick (1977) and Holmes (1992). One component of standing is the so-called privity limitation, which limits suits to parties who are immediate purchasers from the wrongdoer. The privity limitation has applied to common law actions, and to statutory causes of action under both the general antitrust law and direct schemes of regulation. This paper explores the evolution and justifications for the privity doctrine, and then argues that the recent suits, such as Goldwasser (2000) and Trinko (2002) that have allowed indirect purchasers of telecommunications services to have standing against Local Exchange Carriers under the Sherman Act misread the relevant legal authority, and overlooks the important practical function of both standing and privity limitations.

Doctrine of Privity of Contract Under Indian Law: Should it Be Abolished in Toto or Subject to Certain Proviso?

This project deals with the doctrine of privity of contract under Indian law. The legal principle behind this doctrine is that only parties to the contracts have rights and obligations under that contract.This doctrine has its origin in the common law (UK) but now it also applicable in India and some other countries. I conclude by recommending the enactment of legislation giving rights to the stranger to the contract in certain circumstances or to modify the provisions by creating a separate section as per recommendation of the 13th Indian Law Commission Report which may be helpful to diminish the hardships created by this doctrine.This project spread over different parts. In the beginning of project, the student will try to give the justification of privity of contract, its meaning and what are the questions involved in this doctrine. The second part will be dealing with how, with due course of time, it evolved in England. Its application in India will be also dealt in this part. It will also deal with what actually the Privity of contract is? The next part of this project will be dealt present scenario of this doctrine. The last part is the criticism of the doctrine of privity of contract with some suggestions regarding probable reform of it.

Will theRealIntended Third-Party Please Stand Up?

TRADITIONALLY, absent fraud or collusion, the only parties with standing to sue an attorney for malpractice were those in of contract with the attorney, that is, the lawyer's clients. (1) However, over the past several decades, the traditional privity doctrine has eroded as courts have begun to allow of an attorney's estate-planning services to bring malpractice claims. (2) The modern trend in the estate-planning context is to recognize the existence of an attorney's duty to those outside the attorney-client relationship. Outside the estate-planning context, the legal landscape is less dear. This article addresses three legal doctrines that have been found to provide non-clients with standing to sue an attorney: the third-party rule (outside the context of wills, estates, and trusts), the implications of opinion letters, and the potential exposures that lawyers face to non-clients for fraud, and aiding and abetting the alleged wrongful conduct of their clients. I. Attorney Malpractice Liability to Non-Clients In certain contexts, courts have found that a non-client has standing to sue an attorney for malpractice. They have done so under a number of different theories. The first approach is a multi-criteria balancing test, which originated in California. (3) A related approach adopts a contractual third-party analysis, which requires that the non-client be a direct and intended beneficiary of the attorney's services before the courts will impose a duty. (4) Another approach is contained in the Restatement (Third) of the Law Governing Lawyers Section 51(3); (5) however, this approach has been widely criticized as unworkable. (6) A more recent trend has been the recognition of an attorney's duty of care to non-clients outside the estate-planning context. With few exceptions, courts recognizing this duty of care have applied some version of the third-party theory, requiring that non-clients be direct and intended beneficiaries of the transaction for which the client has engaged the attorney's services. The cases below are some of the most recent and important decisions regarding this issue. They highlight the factual contexts in which courts have recognized, and have refused to recognize, the standing of a non-client in a legal malpractice action. A. McIntosh County Bank v. Dorsey & Whitney, LLP (7) McIntosh provides a good starting point from which to survey the contours of this evolving doctrine. The case involved a syndicated lending transaction and asked whether the attorneys for the lead bank in the transaction could be held liable in malpractice to the banks participating in the loan as investing third parties. Plaintiffs, thirty-two banks participating in a syndicated loan transaction originated by lead bank, Miller & Schroeder (M & S), collectively sued legal counsel for M & S--Dorsey & Whitney, LLP (Dorsey)--alleging that it had committed legal malpractice and breached fiduciary duties owed to the participating banks in structuring the loan. M & S closed two loans to a company (the Company) formed to develop and manage a casino on the reservation of the St. Regis Mohawk Tribe (the Tribe) in the State of New York. During Dorsey's preparation of the loan documents, a question arose as to whether National Indian Gaming Commission (NIGC) approval of some of the documentation was required. Dorsey knew that failure to obtain NIGC approval might place the participating banks' interest in the collateral at risk, but advised M & S that NIGC approval was not required. Dorsey failed to advise M & S of the risks to closing without NIGC approval. M & S would not have closed the loans if it had known the risk of closing without NIGC approval. The loans closed without approval from the NIGC. M & S then sold most of the participation interests in the loans to plaintiffs. …

Doctrine of Privity of Contract and Its Exceptions

Creating contract means creating rights and obligations for the parties in case any of the contracting parties fails to perform the contract the other party is entitled to the rights for the legal remedy. The law of contract has been an important aspect in our daily life. It has been directed by certain rules and doctrine of privity is also an important rule of it. This particular rule has been established since a long time but is not free from exception. This paper thus aims to study the doctrine of privity of contract and some exceptions attached to it. Moreover the paper also analyses the Nepalese context in that regard.

The Doctrine of Privity of Contract under English Law

The Doctrine of Privity of Contract under English Law

Privity of Contract: Logic, Experience and Expansion

This Project deals with the legal principle that only the parties to a contract and those who take under them by succession or assignment can have rights or obligations under that contract. The principle is commonly referred to as the doctrine of privity of contract.It became an established part of the common law as a result of decisions in England in the nineteenth century, and it survives in England, Australia, Canada, India and New Zealand with limited judicial and statutory qualifications. We conclude by recommending the enactment of legislation giving enforceable rights to strangers to the contract in certain circumstances.The whole project will be dealt with in three different topics, as the name suggests, i.e. Logic, Experience and Expansion of Privity of Contract. The first part of the project will be dealing with Logic for Privity of Contract. In this part we will be studying what were the reasons for the evolution of Privity of Consideration and how, with due course of time, it evolved in England. Then, evolution of Privity of Contract in India will be also dealt in this part. This part will then deal with what actually Privity of contract is, its legal definition and how it is?The next part of the project will be dealing with the development of Privity though out the history till date. Its initial years in England and introduction in India will be covered under this same topic. Then, one of the most important developments which took place, i.e. Contract (Third Party Rights) Act, 1999, will be dealt and explained dully under this part. To understand the present scenario in the country, recent judicial trends of Indian judiciary will be studied. This all will cover the experience part of the project.Expansion, the last part of the project, will be actually criticism of the Privity of Contract and then some suggestions, probable reforms and extension for the Doctrine of Privity of Contract.