cover image: UNIFORM LAW CONFERENCE OF CANADA     CIVIL LAW SECTION

20.500.12592/t82rp2

UNIFORM LAW CONFERENCE OF CANADA CIVIL LAW SECTION

13 Feb 2022

Accordingly, extrapolating from the specific requirements as set out in London Drugs, the determination in general terms is made on the basis of two critical and cumulative factors: (a) Did the parties to the contract intend to extend the benefit in question to the third party seeking to rely on the contractual provision? and (b) Are the activities performed by the third party seeking to rely on t. [...] [29] Contracting parties may also have contracted on behalf of third parties, whether the contracting party and the other parties have an identity of interests or not.31 In this latter type of case, the contracting parties are the representatives of the third parties, by contrast to the former type of case where the third parties are an instrument of the contracting party. [...] As mentioned above, the twofold test requires looking at the questions of (1) whether the contracting parties intended to extend the benefit to the third party seeking to rely on the contractual provision, and (2) whether the activity performed by the third party is the very activity contemplated in the contract.32 Here again, the second branch of the test can be slightly problematic. [...] However, unless the contracting parties intended to benefit a third party and the third party was performing the activities envisaged in the contract, it would be impossible to alleviate the consequences of the privity rule through the principled exception.42 [39] Again, however, a small number of exceptions have developed to relieve against the strict application of the doctrine of privity of con. [...] In determining when the third party rights should be considered crystallized, it is important to “strike a balance between the interests of the contracting parties to vary the contract and the interests of the third party in securing the promised benefit”.70 [77] The “crystallization test” differs from one jurisdiction to the next: (1) at the moment the contract is formed; (2) after the contract h.

Authors

gmccaig

Pages
44
Published in
Canada