This book contains a slightly expanded version of the Clarendon Lectures in Law given in Oxford in 2001. It deals with major contributions made by the English Courts in the Twentieth Century to three important areas of English contract law. The first is the variation of contracts by subsequent agreement, where developments in the doctrines of consideration and estoppel are discussed in the light of Williams v Roffey Bros and Nicholls (Contractors) Ltd and the High
Trees case. The second is the battle over privity of contract, discussed mainly in the light of the Midlands Silicone case and Beswick v Beswick; much of this discussion retains its practical importance even after the Contracts (Rights of Third Parties) Act 1999. The third is the development of
different types of contractual terms: starting with the distinction between 'conditions' and 'warranties', this discussion traces the development of 'intermediate' or 'innominate' terms in the light of the Hong Kong Fir case and later authorities; it also considers the development and continuing significance of the concept of the 'fundamental' term.
1. Introduction ; 2. Agreements to vary contracts ; 1. INTRODUCTION ; 2. INCREASING PACTS (I) CONSIDERATION, PUBLIC POLICY AND DURESS (II) THREE PARTY AND PUBLIC DUTY CASES (III) WILLIAMS V. ROFFEY BROTHERS (A) FACTS AND RESULTS (B) RELATION TO EARLIER CASES ; 3. DECREASING PACTS (I) CONSIDERATION AND DURESS (II) FOUKES V BEER: PROTECTION OF CREDITORS (III) THE HIGH TREES CASE (A) FACTS AND DECISION (B) CONFLICT WITH PROTECTIVE FUNCTION (C) THE 'ESTOPPEL' ANALOGUE (D) CAUSE OF ACTION? (E) DIFFERENCES BETWEEN KINDS OF ESTOPPEL ; 4. CROSS-OVERS (I) HIGH TREES AND INCREASING PACTS (II) WILLIAMS V ROFFEY AND DECREASING PACTS ; 3. The Battle over Privity ; 1. THE STARTING POINT ; 2. THE TRUST EXCEPTION ; 3. EARLY ATTACKS ON THE DOCTRINES ; 4. THIRD PARTIES CLAIMING THE BENEFIT OF EXEMPTION CLAUSES (A) VICARIOUS IMMUNITY AND BAILMENT ON TERMS (B) REJECTION OF VICARIOUS IMMUNITY: THE MIDLAND SILICONES CASE (C) WAYS ROUND PRIVITY: HIMALAYA CLAUSE (D) WAYS ROUND PRIVITY: OTHER DRAFTING DEVICES ; 5. BINDING THIRD PARTIES BY EXEMPTION CLAUSES (A) THE GENERAL RULE (B) WAYS ROUND THE GENERAL RULE (I) SUPPLIED CONTRACT (II) SUB-BAILMENT ON TERMS ; 6. BESWICK V BESWICK (A) THE FACTS AND RESULTS (B) WAYS ROUND PRIVITY (C) TORT LIABILITY? (D) DAMAGES IN RESPECT OF THIRD PARTY'S LOSS (E) LAW OF PROPERTY ACT 1925 SECTION 56 (I) (F) LEGISLATIVE REFORM ; 4. Types of Contractual Terms ; 1. CONDITIONS AND WARRANTIES ; 2. INTERMEDIATE TERMS (A) THE HONG KONG FIR CASE (B) DEVELOPMENTS AND POLICIES ; 3. SALE OF GOODS ACT 1979 SECTION 15A ; 4. INTERMEDIATE TERMS AND WARRANTIES ; 5. INSURANCE WARRANTIES ; 6. FUNDAMENTAL TERMS (A) EXEMPTION CLAUSES AND FUNDAMENTAL BREACH (B) CONCEPT OF FUNDAMENTAL TERMS (C) PROBLEMS OF CONSTRUCTION (D) DEVIATION (E) LOSS OF RIGHT TO RESCIND