Contracts for a Third-Party Beneficiary

by Hallebeek, Jan; Dondorp, Harry

• ISBN13: 9789004169746
• ISBN10: 9004169741
• Format: Hardcover
• Copyright: 2008-08-15
• Publisher: Martinus Nijhoff

Summary

Through recent modifications of Dutch (1992) and English (1999) private law, contracts for a third-party beneficiary are in Western Europe nowadays considered to be effective and enforceable. This concept is, however, incompatible with both the civilian tradition on the continent and the traditional parties-only-rule of English common law. The purpose of this study is to show the way in which the problem of the third-party beneficiary was dealt with during the various periods of western legal thought and to discuss the subject from the perspective of present-day comparative law. The book is not only of interest for legal historians, but also for all who are engaged in present-day private law: scholars, practitioners and advanced students. Contributors include, Dabid Ibbetson, Regius Professor of Civil Law at the University of Cambridge and Hendrik Verhagen, Professor of Private International Law, Comparative Law and Civil Law at the Radboud University Nymegen, attorney at the firm Clifford Chance Amsterdam, and deputy justice at the Court of Appeal 's Hertogenbosch.

Table of Contents

Jan Hallebeek
Introduction	p. 1
Roman Law	p. 7
Introduction	p. 7
Justinian's Institutes: alteri stipulari nemo potest	p. 8
Classical Roman law: alteri stipulari dari nemo potest	p. 9
Later developments	p. 12
The stipulator has an interest himself	p. 14
Mandatum alteri and pacts in favour of a third party	p. 15
Per extraneam personam nihil adquiri posse	p. 16
Acquisition of remedies through slaves and children under paternal control and similar cases	p. 17
Exceptional cases where a third-party beneficiary has an action	p. 18
Conclusions	p. 19
Medieval Legal Scholarship	p. 21
Alteri stipulari nemo potest; the medieval approach in general	p. 21
The example of Canon law	p. 22
The example of Castile	p. 29
Developments in civilian legal scholarship	p. 34
Conclusions	p. 44
Harry Dondorp
The Seventeenth and Eighteenth Centuries	p. 47
Introduction	p. 47
Influence of the Canon law of contract	p. 49
Third-party rights: the Castilian alternative	p. 50
Natural law	p. 54
Legal practice	p. 58
'Ius hodiernum' and legal scholarship	p. 63
Conclusions	p. 67
The Nineteenth Century	p. 69
Introduction	p. 69
Alteri stipulari; the nineteenth century approach in general	p. 70
Renewed influence of Roman law in Germany	p. 72
Renewed influence of Roman law in France	p. 74
Influence of indigenous legal practice in France and Germany	p. 79
Dogmatic explanations	p. 82
Life insurance and the stipulation in favour of a third party	p. 84
From the contractual clause in the benefit of a third party to the modern third-party benefit contract	p. 88
David Ibbetson
English Law before 1900	p. 93
Introduction	p. 93
Formal contracts and third-party rights	p. 98
Informal contracts and third-party rights	p. 103
Property rights	p. 109
Privity of contract in the nineteenth century	p. 111
English Law: Twentieth Century	p. 115
Introduction	p. 115
Compensatory damages and indirect enforcement	p. 117
Direct enforcement and commercial practice: complex contracts	p. 119
Direct enforcement: avoiding the effects of the restriction	p. 125
Reform of the law	p. 132
The Contracts (Rights of Third Parties) Act 1999	p. 134
Common law and Civil law	p. 136
Hendrik Verhagen
Contemporary Law	p. 137
Introduction	p. 137
Towards a fully emancipated contract in favour of a third party	p. 138
The intention to confer a right upon the third party	p. 143
Acceptance, renunciation and confirmation	p. 146
The identification of the third party	p. 152
Content of the stipulation for a third party	p. 153
The legal relationships between stipulator, promisor and third party	p. 155
Dogmatic explanations for acquisition of rights by the third party	p. 158
Bibliography	p. 161
The Authors of this Volume	p. 165
Index of Names	p. 167
Index of Sources	p. 170
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