In addition to the established exceptions there has also been attempts to avoid the doctrine. The reason for this is that most commentators/judges felt that in the interests of fairness/justice any contract conferring a benefit on a third party should be capable of being enforced by the third party in question.
A) Implying a trust
A contracting party can specify that the benefit is held by him or her in trust for a third party, in which case that third party will have enforceable rights to the benefit.
At one time the courts seemed willing to imply such a trust where there seemed to be an intention to create one, even though there was no specific reference to a trust in the contract
Les Affreteurs Reunis SA v Walford
Where a broker (C) negotiated a charterparty by which the shipowner (A) promised the charterer (B) to pay the broker a commission. It was held that B was trustee of this promise for C, who could thus enforce it against A.
However recent cases have shown the court unwilling to assume such a trust unless there is a clear intention to that effect.
Re Schebsman
Schebsman was due to receive money after working for a company, so entered into an agreement where he would be paid or if he died his wife and daughter were to receive the money. He did die, and no money was paid to his family. They sued but were unsuccessful, the courts not wanting to create a trust where none had been intended by the parties.
Beswick v Beswick
A man sold his business to his nephew; the terms of the sale allowed for a lifetime weekly payment to himself for life and, thereafter a smaller payment to his widow. The nephew made the payments to him, but only one payment to his wife was made after his death. She sued both as the administratix of his estate and as his widow. Her claim as widow failed, as she had not provided consideration for the nephew’s undertaking. Her claim as administratix succeeded as she represented a party to the agreement. She was awarded specific performance.
b) attempts to apply land law to chattels (goods other than land)
it can be seen from Dunlop v Selfridge (involving the re-sale of tires at fixed prices) and the even earlier case of Taddy v Stevious (involving attempts to fix the price of tobacco) that the courts are reluctant to apply the rule in Tulk v Moxhay to goods other than land.
If allowed this would mean that almost any restriction on the use of an item could be enforced against any subsequent owner who Is not party to the original contract. And would encourage anti-competitive practices (as it is one itself) that would lead to higher prices for consumers.
Despite cases such as Dunlop and Taddy there have been attempts to apply land law to Chattels to avoid the doctrine of privity.
Lord Strathcona Steamship Co. v Dominion Coal Co.
Dominion chartered a ship, which was latter sold to Strathcona who knew of this charter but refused to honour it. Applying the rule in Tulk v Moxhay Dominion argued that rights ran with the ship and succeeded in obtaining an injunction against the new owner despite not contracting with him.
Lord Wright in the case of Clore v Theatrical Properties Ltd said that the decision in the Strathcona should be confined to the circumstances of that case.
In Portline Ltd v Ben Line Steamers Ltd - Lord Diplock went further and said that the decision in Strathcona was simply wrong.
c) creative use of S56 Law of Property Act 1925 (a person not named as a party to the conveyance or other agreement can still benefit under the agreement) but rejected by the House of Lords in Beswick v Beswick
d) The recognition of a right to claim damages on behalf of another
One obvious problem of privity comes when a contracting party buys something on behalf of others (e.g. a family Holiday).
Where there is a breach of contract, the rules of privity mean that the party with whom the contract was made can claim for their loss only. This problem was addressed in:
Jackson v Horizon Holidays Ltd
Mr J Booked a holiday to Sri Lanka with Horizon for his wife and family. The Hotel and meals were sub-standard; he and his family were very disappointed. Ignoring the privity rule Denning awarded compensation not only to Mr J but also his family.
Woodar Investment Development Ltd v Wimpy Construction UK Ltd
Dennings decision in Jackson drew criticism but their lordships suggested it was a fair one. They suggested that it could still conform to the privity rule if it were based on the fact that the loss of enjoyment by his family was by itself a loss to Mr J, and it was the loss to him of their enjoyment that should be compensated for, rather than the loss to them.
e) an action in Tort
White v Jones
There was a contract between a solicitor and a farther to update his will. The farther died but the solicitor had been negligent and hadn’t updated the will. The daughters took an action in Tort for the £9000 and won, thus avoiding the privity rule.