Consultation Paper Privity of Contract


Criticisms of the privity doctrine and reform in other jurisdictions



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Criticisms of the privity doctrine and reform in other jurisdictions

5. The privity doctrine has long been criticised as artificial and contrary to the parties' intention to benefit a third party. As a result, the courts have sometimes needed recourse to devices such as agency and trust to allow a third party to enforce a right conferred on him. Furthermore, legislation has made incremental inroads to the doctrine in specific cases. These legal principles at common law and in statutes circumvent the privity doctrine in some cases, but not generally.1 It is no surprise that law reform bodies in various common law jurisdictions have critically examined the doctrine and recommended its reform.2 In Australia (Western Australia and Queensland), England, New Zealand and Singapore the privity doctrine has eventually been abrogated by legislation.3


6. The questions for the Sub-committee are whether the anomalies of the privity doctrine are serious enough to warrant its reform and, if so, whether ad hoc reforms, either by the courts on their own initiative or by legislation, are adequate in the modern Hong Kong context, or whether an issue of this magnitude calls for comprehensive legislative reform.





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