Dutton v Poole (1678) is a landmark decision in the Court of Chancery.Vernon V. Palmer, The Paths to Privity: The History of the Third Party Beneficiary Contracts. (The Lawbook Exchange, Ltd., 1992) p75.Roy Kreitner, Calculating Promises: The Emergence of Modern American Contract Doctrine (Stanford University Press, 2006) p. 30.
It established the rule that privity of contractDutton v Poole (1678) 2 Lev 210]] coupled with lack of consideration preclude third-party suits for breach of a contract, but made an exception to the rule in close family relationships. This exception was not generally followed in subsequent contract cases, but the issue has not been addressed by the Contracts (Rights of Third Parties) Act 1999.
Facts In this case a son contracted with his father not to fell and sell the timber from their oak wood which the son would then inherit, and in exchange, he would pay £1000 to his sister on her marriage. The sister married after the father's death, and the son refused to make good the promised sum ().
Decision of court of law and of the court of equity In this case Scroggs C.J. with strong reasons permitted the sister to appeal from the decision of a more junior judge of his court despite her not being a party to the contract (privity of contract), on the basis that she was a close family member. Scroggs held that "apparent consideration of love and affection from the father to his children [means] the consideration and promise to the father may well extend to the children."
An appeal by the son to the Court of Chancery (i.e. in the then sometimes conflicting domain of the law, the courts of equity) reinforced the determination for his sister.Dutton v Poole CEC (1679) T Raym 302, 83 ER 156. The decision was confirmed in Martyn v HindMartyn v Hind (1776) 2 Cowp 437, 98 ER 1174) and cited in Drive Yourself Hire Co v Strutt.Drive Yourself Hire Co (London) Ltd v Strutt CA ( 1 QB 250)
Exception to privity of contract This exception was for almost a century from 1884 considered not part of the common law,Thomas A. Street, The History and Theory of English Contract Law. (Beard Books, 1999) p. 153. and was directly refuted in Tweddle v Atkinson (1861).Tweddle v Atkinson (1861) I B&S 393, 101 ECL393.
The Judicial Committee of the House of Lords in Beswick v Beswick achieved a similar effect by allowing executor-claimants seeking equity's assistance to enforce promises to pay them indirectly contained in contracts between third parties and the deceased. The leading judges expressed regret that legislation had not loosened the doctrine (which took place 32 years later in 1999).Beswick v Beswick UKHL 2.
See also
English contract law Tweddle v Atkinson (1861) 1 B&S 393, the traditional rule of privity Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd AC 847, affirming the privity rule 250 years later in a resale price maintenance case. Sprat v AgarSprat v Agar (1658) 2 Sid 115. (Gray's Inn Library Manuscript H-1792. The Physicians case1 Vent 6.
References