On the Privity Rule.

Its misuse in disputes under contract law.

The original case it derives from...


This section is a result of a dispute in 2004 by the author, with a company in the UK and

it remains a matter of pride, that the British Legal system, with all its faults of which there are many, is one where the argument:

"Might's not right, where argument's not treason,

Treason's his who's Might, denies good reason."

as you have seen elsewhere in the poetry section, means that logical arguments (when they get heard) does not bear the consequence of the death penalty – unless that is: when errant peccant councils, abuse their powers and take people to the ends of the earth for £50 breaking every statute in the book and end up caught in court, and lose £4000 for the disgraceful lies they told.
This is what some people do, when at the end of their tether..

Queen's Guard committed suicide here, and Council worker also for the immoral conduct we are surrounded with.

Winter stood up to them. Here...



1. THE BASIC RULE: Put simply, the privity rule means that only a person who is a party to a contract can enforce rights under it (the benefit) or be adversely affected by it (the burden).

The doctrine of privity of contract developed in the nineteenth century as a corollary of the bargain theory of contract., Contractual benefits and burdens could only be conferred on a person who provided some consideration. The doctrine of privity of contract acts as a boundary mark for the law of contract, preventing contractual obligations from spreading beyond the contractual bond.

This privity rule has given many problems to legal professionals for 140 years until the Law Commission revised it, under the “Contracts (Rights of Third Parties) Act 1999 (c. 31)”

Winter didn't need the changes, he simply used logic in a 3-5 minute argument, to take the obverse rule and that argument brought the solicitor to tears, and the Judge went off to seek advice, returning to say “you are right” I will give this a two and half hours hearing. The defendant lost their costs of £1200 for defending £8, being called “deplorably opportunistic”

2. THE BASIC RULE ABUSED
: Only a person who is a party to a contract can enforce rights under it! The implication in this abuse is that the power of enforcement springs from only the contract. If you did not sign it you are not a party to it. This 'suppressio veri" "suggestion falsi" (see elsewhere on the logic section of this site) is the abuse Few people would normally think of enforcing a contract unless they have some proximity to its impact on their lives, and this would usually be restricted to their proximity being that of class membership as a third party to it. For example the relationship between a seller, carrier and buyer, where the seller and carrier have co-signed a contract, and the essence of that contract implies there must be in existence a third party; you the buyer or consumer, for it to function properly.


There will be an expose of the application of 2. above, as used in 2004, against this author as a buyer where the carrier also relied on the asymmetry of knowledge between their solicitor and the lay customer, to retain a revenue of £15.28 advantage; despite their MONEY BACK GUARANTEE, and dispose of the buyer quickly and without cost. This is an act that 'blurs the grace and blush of modesty, and sets a blister', (iii)** where "noblesse oblige" resides. The defendant's first argument, a fallacy called the 'appeal to authority' is better expressed I think in Shakespeaare's:

"For my authority bears of a credent bulk,
That no particular scandal once can touch But it confounds the breather. (iv)**


The father case; TWEDDLE v ATKINSON (1861)1 B & S 393, below (i)** was relied on in court by this author on 3rd August 2005. The application to dismiss the claimant's case was before the judge and the claimant stated simply, that "the reason for the failure of the case in 1861, was the absence of 'consideration' (money or some other benefit), therefore the presence of consideration, which is declared as received by the defendant in their defence, makes the claim enforceable."


The 1861 Tweddle V Atkinson application was dismissed on absence of consideration, my claim had presence of consideration and proof of its moves. Hence it was allowed.....


This is derived from the principle of necessary and sufficient conditions in determination of simple causes. To place this argument into a frame where an analogy with a law of nature; by way of the laws of logic; being perhaps even more powerful, will be easily understood in the example:


"Oxygen is necessary for life if and only if the absence of oxygen is sufficient to extinguish life." This is an extremely simple example, that could be initially qualified with the terms "for specific species, under specific circumstances"


Transposing the analogy produces; if consideration is one of the necessary conditions then, "Consideration is necessary for an enforceable contract, if and only if the absence of consideration is sufficient to make a contract unenforceable." Appropriate qualifications like promisors and promisee may be added to render the details more specific. The conditional, if and only if, is the material implicative function that binds the nomic relationship.


While this relates to nomic relationships; sense 2 OED (ii), in laws of logic and nature, one can easily see why the privity rule; as drawn from bargain theory, was constructed to be sufficient for the 'failure to enforce' in TWEDDLE v ATKINSON (1861) and by material implication the converse (presence of consideration) would make the judgement enforceable.


The deeper logic here is: presence or absence as expressed in more formal notation P or ~P ( 'P' or not 'P') as shown in the earlier short treatise on "hunt the proposition" on this website. The laws of logic applied here make any argument concerning the absence (~P) of consideration, focus on the first disjunct (P) which is presence. The sufficient condition is the more powerful element, since; in the argument above, Calcium or Magnesium may also be necessary for life, but not sufficient for the absence of it except over a long period of time. Here the primary sufficient condition was consideration; as was oxygen. Bear in mind that one disconfirming instance in the entire set of confirming instance, is catastrophic for the principle. One disconfirming instance of life without oxygen means either the rule is invalid in nature or not universal, and requires modification to a defined species of life to remain a simple cause.


Thus, finding a dispute in common law precedent where a promisee provided consideration to a promisor and the relationship did NOT constitute an enforcable contract will I suggest be an impossible task. If one should be found, then the privity rule is actually in contradiction with itself and subject to the LAW OF NON CONTRADICTION. Which is simply expressed in the notation ~(P . ~P) (Not the case that P and Not P are true together). That is what makes the rule into a law of logic. These laws are true in all space and all time, and all universes. They are the primary elements of Certain Knowledge, as opposed to Belief, which is why the author always prefers logic and truth, to rhetoric and proof:


'Truth, the Whole truth and Nothing but..', is best,

While 'Truth and Nothing but..', leaves out the rest. "


From the poetry section. Truth as defined in Aristotle (v) **


Even where 'absence of evidence is not evidence of absence', the ring of truth can prevail, and any experienced judge of persons will instinctively KNOW this. If not then they must resort to the polygraph, or even more promising, the brain fingerprinting techniques now being researched by Dr .L. A. Farwell in the USA. Proof, while necessary in a court of law, needs to be sensitively combined with the behavioural sciences of body movement, also understood instinctively, as well as a good look at the eyes, "The window to the soul.": Wittgenstein. If that is not used, then the "mind's eye" (Hamlet) is even superior, where logic is applied as a filter to the data input to the stream of consciousness. The use of logic combined with the latter, actually can be startling sometimes. Just as one knows the form of a predictable event, like the bending of a clear plastic ruler, leads to the eventual opaqueness developing at the juncture of a breach, then as predicted it snaps. Linguistic exchanges of a social nature; being easier, have a form that can result in a sense of foreknowledge to the next response of ones interlocutor.


Certain Knowledge; existing as universals that are essentially tautologies as opposed to beliefs, is the basis from which most if not all scientific constructs and methodologies should flow, The Cartesian proposition "Cogito ergo sum;" I think therefore I am, is at the boundary of certain and uncertain knowledge which then slopes in to the Platonic lower areas of Belief. The Cartesian proposition is not even defeated by the 'clever devil principle', where hallucinatory perception might be the foundation of false data n the percepts' stream of consciousness. One has to exist in order to have perceptions of such magnitude where the entire set of presented data may be false, thinking about it is a necessary condition of cognitive existence. This may be subject to controversy, but that hopefully is explained in the section relating to "Is existence a predicate?" where matters concerning the ontological and cosmological arguments for the existence of God are presented.


Of course the privity rule constructed by three judges in 1861, is fallible as a rule, and may be subject to changing customs in human behaviour, just as flux in the laws of nature, revealed in the phrase from antiquity, "One cannot step into the same stream of water twice." However the rule has been fixed in the 'firmament' as a precedent or frame of reference, and until removed or reformed; as in the Contracts (Rights of third Parties act) 1999, remains a rule many parties to a contract will rely on to prevent the impact of contracts spreading beyond the parties or class members of its express or implied terms.


The moral; for direct or third parties, would be to simply provide sufficient consideration as a promisee to one or both promisors, and then become a party to the contract in question. Nothing prevented Tweddle Junior giving £5 to each parent, and writing that into the contract. The fathers if necessary could provide that same amount of money as another gift outside the contract. Clearly this first test was an unknown rule until created, perhaps quite fallaciously, since theere was nothing unfair in its terms, except perhaps to the family Atkinson, when his will and testament was read.

_________________________


(i)** TWEDDLE v ATKINSON (1861)1 B & S 393 is usually cited as the prime case which first

established the doctrine of privity of contract as part of English law. In reality the rule that consideration must move from the promisee is similar to, perhaps identical to, the privity rule...


It demonstrates some of the issues associated with privity and consideration in contracts.


Tweddle's father (whom I'll call Tweddle senior), and Atkinson -- Tweddle's father in law -- contracted to contribute a sum of money each to the support of Tweddle and his wife. Tweddle senior kept up his part of the bargain, but Atkinson died before paying anything. Tweddle sued the executors of Atkinson's estate. His suit was rejected because he himself was not party to the contract, even though it was for his benefit (see: Privity Of Contract). It is not possible to claim that there is an implicit contract between Tweddle (junior) and Atkinson, because there is no consideration from Tweddle to Atkinson.

It seems likely that Tweddle senior could have enforced the contract at law (though he did not), because the basic requirements of a contract were fulfilled. The consideration in this case would be that Tweddle senior accepted a detriment at the request of Atkinson, rather than the Tweddle senior gave some benefit to Atkinson.


Alternate description from London University coursework.


William Tweddle, the son of John Tweddle, married the daughter of William Guy.The two fathers made an agreement with each other to give young Tweddle a sum of money on the marriage. Guysubsequently died so when the money was not paid William Tweddle sued Atkinson, who was Guy’s executor. The

agreement between the fathers expressly provided that William Tweddle ‘has full power to sue the said parties in any Court of law or equity for the aforesaid sums hereby promised and specified’. The three judges were unanimous that William Tweddle had given no consideration for the agreement which

was, after all, between the fathers and they gave him short shrift, not even troubling counsel for the executor, so apparently weak was the new husband’s argument. This seems to ignore the fact that young Tweddle had married Guy’s daughter and, even if she were a great beauty so that he suffered no detriment, the entry into marriage might have been perceived by a more sympathetic tribunal as

consideration, with William Tweddle taking Guy’s daughter off his hands. Although consideration must move from the promisee, it need not move to the promisor.




(ii)** Nomic, That pertains to or is concerned with a discoverable scientific or logical law.

Notes from case:


(iii) ** Measure for Measure: iv, iv: 26


(iv) ** Hamlet: iii, iv: 41


(v) ** Aristotle "To say of what is, that it is, or of what is not, that it is not, is true." Metaphysics (Book 4)

and its converse "To say of what is, that it is not, or of what is not, that it is, is false


Notes from Philosophy:


Culpability is a function of 1) the harm one does, and 2) the responsibility one has in the act of 'intending negligence' as opposed to simple negligence. Understanding the defendant's teleology, the claimant was able to predict precisely this tortious willful negligence, at first sight of their filed allocation questionnaire on 22nd April 2005, being a construct of delay and intended breach; not merely to the claimant, but towards the court.