Book reviews: October 2023

Reviews of Privity of Contract and its Exceptions (MacFarlane); Fault-based and Strict Liability in the Law of Neighbours (Gatica)

16th October 2023 | Stewart Brymer (review editor: David J Dickson)

Privity of Contract and its Exceptions

Lorna J MacFarlane

PUBLISHER: EDINBURGH LEGAL EDUCATION TRUST
ISBN: 978-1999611859
PRICE: £30

This book, which was published in 2021, is volume 11 in the Studies in Scots Law published by the Edinburgh Legal Education Trust. Other volumes in the series are available to download free of charge at edinburghlawseminars.co.uk/. As before, I commend them to you.

As is stated in chapter 1 of this scholarly text, the doctrine of privity of contract and the exceptions therefrom is in a state of confusion. The aim of this book is to bring a degree of clarity to this area of law and, in particular, some justification for the exceptions to privity. This the author achieves with considerable clarity alongside a detailed review of the authorities and how other legal systems deal with the concept. In particular, it addresses the current confusion and lack of coherence in the law.

As with other texts in the series, this book begins with an historical analysis of the privity doctrine before addressing the contentious relationship between the privity doctrine and delictual liability. Of interest is the analysis in chapter 5 of statutory exceptions to privity. See, for example, the reference to the Fire Prevention (Metropolis) Act 1774, which is still in force (but only applies in the Cities of London and Westminster) and allows insurance companies and other interested parties to prevent tenants with short term lets from claiming the full value of their insurance policies in the event of a fire. The insurers can, instead, require that the proceeds of the policy go towards rebuilding the premises. This is an exception to privity because the insurers can determine that the moneys payable under the policy do not directly reach the insured.

The author points out that Scots law lacks a definitive judicial statement on the existence and exact meaning of privity in contract. The concept is, however, accepted judicially. The author does not deal with third party rights because the third party does not have a contractual right. In chapter 4, the author concludes that privity does not, and should not, bar delictual claims by third parties.

The concluding chapter (chapter 11) contains a useful résumé of the author's findings and identifies areas for further research. With regard to the latter, the treatment in chapter 10 of legal networks is very good in that the author recommends that the law on networks be both workable and up to date – in particular whether networks could be treated as contractual or legal obligations sui generis.

As someone whose knowledge of privity of contract was somewhat sparse before I read this book, I commend it to you.

Professor Stewart Brymer OBE, WS, Brymer Legal Ltd

Fault-based and Strict Liability in the Law of Neighbours

Maria Paz Gatica

PUBLISHER: EDINBURGH LEGAL EDUCATION TRUST
ISBN: 978-1999611897
PRICE: £30

This book, which was published in 2023, is volume 13 in the Studies in Scots Law published by the Edinburgh Legal Education Trust. Other volumes in the series are available to download free of charge at edinburghlawseminars.co.uk. I freely admit not to have known much about this series of publications until they were brought to my attention. I could almost end this review at this point by simply stating that this book is a "must read" for anyone involved in a neighbour dispute.

The style adopted by the author is the much used and trusted method of telling the reader what they are to be told; telling them; and then summarising what they have been told. That is not intended to be a flippant remark, because the style is very useful for a busy practitioner to find their way around the text. I particularly commend chapter 11 (Conclusions) in this regard.

The author begins by analysing the general fault based rule applicable to insurance and the special strict liability rule for abnormally dangerous conduct – both rules being problematic and in need of clarification with regard to their content and scope.

Chapter 5 has a very interesting analysis of the forms of fault that lead to unintentional nuisance, namely negligence and recklessness. Chapter 8 contains an interesting cross-reference to Book 4 in the series when considering disputes over uses of water. Personally, I found the treatment of withdrawal of support in chapter 9 to be very practical and informative.

The author's conclusion was that the two-rule model of liability proposed in the book represents a unified framework that cuts across the subdivisions of neighbour law in order to adopt a consistent approach that focuses on distinctions.

I conclude this review by stating that I had always appreciated that there were areas of law about which I knew very little. This book proves that point. It is a masterly piece of work.

Professor Stewart Brymer, Brymer Legal Ltd

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