On
8/17/06, Robert Stevens wrote:
(1)
You might try Reynolds' note (1989) 105 L.Q.R. 1.
(2)
Trident was an odd case. An insurer, like a bookmaker,
would not stay long in business admitting that a sum is due but
refusing to pay on the basis that they cannot be compelled to do
so by the payee. Even if an insurer did refuse to pay, the promisee/insured
would be able to compel payment to the third party payee through
an order for specific performance (see Brennan J p 138-139).
The
real source of the dispute in Trident was whether the claimant
was one of the parties insured at all. The privity rule was then
invoked as a fall back but wasn't what the initial/real argument
was about.
As
to what Trident's ratio is, that is obscure.
My
own view, is that the result would have been unimpeachable if the
promisee had been before the court. It is sometimes said that it
is unacceptable to leave the third party at the mercy of the choice
of the promisee as to whether to obtain a remedy on his behalf,
if the third party has no right under a contract or trust to compel
the promisee to do so. My view is that this is just tough luck on
the third party (see Brennan J at p 140).
