Rights of Third Parties Case Study Example | Topics and Well Written Essays - 3000 words

Rights of Third Parties - Case Study Example Contract is an agreement or set of promise between two or more persons which is binding and therefore legally enforceable. It covers transactions like buying and selling, employment of staff, partnership agreement and so on. It can also be described as: "an agreement which is legally binding on the parties to it and which broken may be enforced by action in court against the defaulting party. Existence of contract - Damages sought by claimants on the basis of fraud and breach of fiduciary duty in respect to diverted insurance premiums - Negotiations between the parties taking place after proceedings issued - Letter sent by claimant asking whether defendant accepted responsibility for the fraud - Letter signed and returned by defendant but with caveat - Whether binding agreement concluded between parties. Willis Management (Isle of Man) Ltd v Cable and Wireless plc [2005] 2 Ll L R 597 (CA/UK) A trust is an equitable obligation, binding a person (who is called a trustee) to deal with property over which he has control (which is called the trust property) either for the benefit of persons (who are called beneficiaries or cestuis que trust) of whom he may himself be one, and any one of whom may enforce the obligation, or for a charitable purpose, which may be enforced at the instance of the Attorney-General, or for some other purpose permitted by law though unenforceable. Pettit Equity and The Law of Trusts 8th ed. (1997) p 24. CONSTITUTION OF TRUSTS Constituting the Trust - act of vesting the trust property in the hands of the trustee. If inter vivos transferor will vest the property concurrent with declaration of trust, If testamentary property will vest upon testator's death in executors/administrators, - Rule - if trust not constituted, it is invalid- Problems: A declares trust in favour of B on Day 1, but doesn't transfer $$ to trustee until Day 5. - Rule - until the trustee receives the property, trust incompletely constituted invalid - Curative: On day 5, trust valid & operative b/c trustee has property - Settlor can be compelled to transfer property they promised to place in trust - where S received valuable consideration for promise to create trust RIGHT OF THE THIRD PARTY The Contracts (Rights of Third Parties) Act, which was given Royal Assent on 11th November 1999, radically changes a fundamental principle of English law, namely that only those who are parties to a contract can enforce rights under that contract - the 'privity of contract' rule. The Act applies to virtually all contracts. Therefore the construction industry must consider its impact on all its contracts - building contracts, subcontracts, consultants' appointments, collateral warranties, insurance policies, bonds, adjudication agreements etc. Right of third party to enforce contractual term: The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into. This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other

Tort law Essay Example | Topics and Well Written Essays - 1500 words

Tort law - Essay Example Basically, a tort law can be described as a civil wrong not arising from a contract and in the case of negligence, one should owe due consideration to one’s neighbour (Capiro Industries vs. Dickman 1990). It generally refers to the duty of care owed by somebody to his or her neighbour. Cooke (2010) suggests that in the event that it can be proved beyond any reasonable doubt by the court that the plaintiff has suffered a civil injustice, a claim can be raised and a remedy in the form of compensation can be instituted. On the other hand, negligence can be described as a civil wrong arising from the act of negligence by doing something a reasonable man would not do and a plaintiff must prove that the defendant owes a duty of care (Donoghue V. Stevenson 1932). It is of paramount importance for the plaintiff to be able to prove that the defendant had duty to take care of and that duty of care has been breached in order to win the claim. In order to prove the existence of day care d uty, some conditions should prevail where a defendant can be taken to task if this duty is breached. Under the case of Capiro Industries vs. ... In the above case of Ultramares Corporation v Touche (1931) 255 NY 170), the facts are: Justice Cardozo created a special rule with regards to accountants and auditors. He suggested that mass liability should not exist but that only the client and the intended third party could hold an accountant liable for the accountant's negligence (Wegman 2007). Thus the court must be careful especially when it comes to establish negligence in the case involving an unmarked amount of money for an unfixed time with regards to an indefinite third part. An accountant can facilitate a loan transaction between a financial institution and a third party and in this case, only the financial institution and the third party can hold the accountant liable in the event of losses as a result of negligence. In this case, negligence is a common form of tort law which can be punishable if carelessness is proved and the victim will be entitled to get compensation. Failure to protect others from harm as a result o f somebody’s conduct is known as negligence whereby a duty care will have been ignored. From the above explanation of tort, it is clear that the accountant in this particular case has a duty care to make sure that their actions do result in financial losses to the client or the other third party which can be the plaintiff. With regards to this normal test, it does not always follow that duty care is owed by the third party which may result in loss of something which requires the plaintiff to prove that the resultant loss has been a result of the action of the accountant. In the case of Paris v Stepney Borough Council (1951) the editor of Salmond on the Law