Robert Flannigan Privity Analysis

Robert Flannigan states ‘arguments offered to justify the doctrine of privity only rarely get beyond the level of axiomatic assertion…. Argument, as it turns out, is not something to which the doctrine stands up well’. Robert Flannigan, ‘Privity – the end of an era (error) (1987) 103(Oct) Law Quarterly Review 564 Professor Robert Flannigan is a law lecturer in University of Saskatchewan, Canada. He has joined the faculty since 1985 and he teaches subjects and research interests include contract law, business organization and fiduciary obligation . Based on the quotation above, he tries to voice up his opinion and point of view regarding the doctrine of privity. The literal meaning to the above quotation is the rebuttal towards the doctrine of privity is usually unquestionable

Since Eastwood v Kenyon neither the most intention to bound, nor the weightiest moral obligation, has sufficed for a binding contract . Something of economic value must be given in exchange for the promise. This means, again, that focusing on the promisor’s undertaking alone is incorrect: as Kincaid says, ‘the intent of the promisor, with its moralistic, civil-law flavour, was rejected as the basis of contractual liability .’ Hence, Lord Denning emphasize on the sanctity of promise was mistaken . The question of ‘who can sue’ is also answered by the ‘bargain theory’. Which ‘reflects the common law’s … focus… upon the plaintiff’s cause of action, not the abstract enforceability of the promise. It is the plaintiff’s role in the bargain as promise and payer of the price demanded which qualifies him for the right to sue. To remove these elements is to remove the essentially reciprocal nature of contract. In conclusion, Kancaid’s argument was that privity reformers had to explain the basis of the third party’s right and not just the promisor’s