1 [1975) AC 154. For a sustained critique of this case, see Rose, ‘Return to Elder Dempster?’ (1975) 4 Anglo-American LR 7.

2 Ibid, at p 167.

3 Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pp Ltd(1980) 3 All ER 257.

4 Ibid, at p 261.

5 [1989) 1 All ER 1180.

6 Ibid, at p 1187.

7 Cf the technique employed in Warren and Brandeis, ‘The Right of Privacy’ (1890) 4 Harvard LR 193.

8 Thus far, in the text, we have talked about a network of contracts. By a ‘network contract’, we simply mean one of the contracts comprising a network of contracts; and, by a ‘network contractor’, we mean a party to such a network contract.

9 [1915) AC 847.

10 Ibid, at p 853.

11 [1962) AC 446.

12 Ibid, at p 473.

13 [1958) 2 QB 146.

14 Ibid, at p 164.

15 [1926) AC 108.

16 [1958) 2 QB 146, at p 168.

17 [1932) AC 562.

18 Some of the problems associated with network contracts were, in fact, encountered quite early in the history of the railways, in the so-called ‘through-carnage’ cases. There, well before the emergence of the Donoghue principle, it was held that a company could be liable to a passenger injured by it, although no contract of carriage existed between the company and the passenger (or any person contracting directly for his carriage); see eg Foulkes v Metropolitan District Railway Co (1880) 5 CPD 157, 169. And, for a helpful analysis of the through-carriage cases, see Battersby, ‘Exemption Clauses and Third Parties’ (1975) 25 University of Toronto LJ 371, 383–393.

19 [1964) AC 465.

20 [1983) 1 AC 520.

21 Seminally see Atiyah, ‘Promises, Obligations, and the Law of Contract’ (1978) 94 Law Quarterly Review 193; and post-Junior Books, see eg Holyoak, ‘Tort and Contract after Junior Books’ (1983) 99 Law Quarterly Review 591; Jaffey, ‘Contract in Tort 's Clothing’, (1985) 5 Legal Studies 77; Reynolds, ‘Tort Actions in Contractual Situations’ (1984–85) 11 New Zealand Univ LR 215 and, Markesinis, ‘An Expanding Tort Law - The Price of a Rigid Contract Law’ (1987) 103 Law Quarterly Review 354.

22 [1984) 2 All ER 304.

23 Ibid, at p 311.

24 [1924) AC 522.

25 It derives primarily from Coke 's notes to Southcote 's Case (1601) 4 Co Rep 83b. See Adams, ‘The Standardisation of Commercial Contracts or the Contractualisation of Standard Forms’ (1978) 7 Anglo-American LR 136.

26 [1966) 1 QB 716. See, also, the recent case of Singe R v Tees and Hartlcpool Port Authority (1988) 2 Lloyd 's Rep 164, 167, where Steyn J discusses Morri 's v Martin and points out that none of their Lordships in Scruttons disagreed with Lord Denning MR.

27 Ibid, at p 729.

28 See (1962) AC 446, 488: ‘But, if you look at the Elder Dumpster case with the spectacles of 1961, then there is a way in which it can be supported. It is this: even though negligence is an independent tort, nevertheless it is an accepted principle of the law of tort that no man can complain of an injury if he has voluntarily consented to take the risk of it on himself… So in the case of through transit, when the shipper of goods consigns them “at owner 's risk” for the whole journey, his consent to take the risk avails the second carrier as well as the first, even though there is no contract between the goods owner and the second carrier. Likewise in the Elder Dumpster case the shipper, by exempting the charterers from bad stowage, may be taken to have consented to exempt the shipowners also.’

29 [1985) 2 All ER 1077.

30 [1989) 1 All ER 1180.

31 Cf Brownsword, ‘Contractual Settings, Structures, and Strictures’ (1989) 133 SJ 682.

32 In the text, we concentrate on the common law exceptions. This does not imply, however, that the statutory exceptions are unimportant. On the contrary, there are important statutory provisions concerning such matters as insurance (see eg s 11, Married Women 's Property Act 1882, and s 14(2), Marine Insurance Act 1906), commercial documents (see eg s I, Bills of Lading Act 1855, and, generally the Bills of Exchange Act 1882), and the protection of consumer interests (see eg the Defective Premises Act 1972, and the Consumer Protection Act 1987). For the limitations of s 1, Bills of Lading Act 1855 in relation to undivided goods, see The Law Commission, ‘Rights to Goods in Bulk’ (Law Commission Working Paper No 112, 1989); and, Reynolds, ‘The Significance of Tort in Claims in respect of Carriage by Sea’ (1986) Lloyd 's Maritime and Commercial Law Quarterly 97.

33 See, for instance, the early railway cases, eg Hall v North Eastern Railway Co (1875) LR 10 QB 437; and, generally, see Gillam, ‘Products Liability in a Nutshell’ (1958) 37 Oregon LR 119, 153, for a list of 29 devices which have been pressed into service to avoid the privity rule.

34 [1954) 2 QB 402.

35 See Adams and Brownsword, ‘The Ideologies ofcontract’ (1987) 7 Legal Studies 205, and, generally, Understanding Contract Law (Fontana, London, 1987).

36 [1979) 3 All ER 580.

37 Ibid, at p 583.

38 Nb the limiting function of the doctrine of intention to create legal relations; see Simpson, ‘Innovation in Nineteenth Century Contract Law’ (1975) 91 Law Quarterly Review 247.

39 See Collins, The Law of Cuntract (Weidenfeld and Nicolson, London, 1986), esp pp 48–50, and 106–107.

40 (1861) 1 B & S 393.

41 Ibid, at p 398.

44 Ibid, at p 394.

43 [1979) 3 All ER 580.

44 Of course, there is a nice point here about A 's right to release B from his contractual obligations. In particular, would it be fair for C to be able to hold B to his contractual obligations where A wished to release B? However, whatever the answer to this question, it does not undermine the thrust of our argument in the text.

45 Thus, in Simaan General Contracting Co v Pilkington Glass Ltd (No 2) (1988) 1 All ER 791, 805, Diilon LJ said that Junior Books could not how be regarded as a useful pointer to any development of the law’ and that citation from the case could not serve any useful purpose in the future. In other words, in Dworkinian terms, Junior Books has lost its gravitational force.

46 [1983) 3 WLR 368.

47 Cf Adams, and Brownsword, , ‘From Jarvis to Junior Books: Tortuous and Tortious Constructions’ (1989) 5 Construction Law Journal 3.Google Scholar

48 [1983) 1 AC 520, 532.

49 If we employ the usual concentric circles figure of negligence liability, then the certainty argument is neutral as to whether liability is limited to the inner circles or extended to the outer circles; the important point is that the lines of liability are clearly defined. However, the thrust of the Ultramares indeterminacy principle is that it is not enough that the lines are clearly drawn, for it also matters where liability begins and ends, the implication being that the zone of liability is better drawn narrowly than broadly.

50 [1983) 1 AC 520, 552.

51 [1988) 1 All ER 791.

52 Ibid, at p 804.

53 Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (1986) AC 785. And, see, Adam and Brownsword, ‘The Aliakmon and the Hague Rules’ (1990) Journal of Business Law 23; Goode, ‘Ownership and Obligation in Commercial Transactions’ (1987) 103 Law Quarterly Review 433, esp at pp 453–459; and Reynolds, ‘The Significance of Tort in Claims in respect of Carriage by Sea’ (1986) Lloyd 's Maritime and Commercial Law Quarterly 97.

54 (1987) Lloyd 's Maritime and Commercial Law Quarterly 288.

55 For example, in Scruttons, although Lord Denning was prepared to employ the consent principle for the benefit of the stevedores, he ruled that the terms of the bill of lading did not avail the stevedores because they were expressed only to protect the carriers. Accordingly, on the facts, the shipper had not consented to the risk in the bills of lading. See (1962) AC 446, 488–489. By contrast, however, Lord Denning ruled that the shippers had consented to the risk as set out in the stevedoring contract.

56 In this respect, we might recall Lord Keith 's speech in Junior Books where he cautioned:

‘I do not consider this to be an appropriate case for seeking to advance the frontiers of the law of negligence upon the broad lines favoured by certain of your Lordships… [To do so] would raise very difficult issues of principle having a wide potential application. I think it would necessarily follow that any manufacturer of products would become liable to the ultimate purchaser if the product owing to negligence in manufacture was, without being harmful in any way, useless or worthless or defective in quality so that the purchaser wasted the money he spent on it. One instance mentioned in argument and adverted to by Stamp LJ in Dutton v Bognor Regis … was a product purchased as ginger beer which turned out to be only water, and many others may be figured.

To introduce a general liability covering such situations would be disruptive of commercial practice, under which manufacturers of products commonly provide the ultimate purchaser with limited guarantees usually undertaking only to replace parts exhibiting defective workmanship and excluding any consequential loss. There being no contractual relationship between manufacturer and ultimate consumer, no room would exist, if the suggested principle were accepted, for limiting the manufacturer 's liability. The policy considerations which would be involved in introducing such a state of affairs appear to me to be such as a court of law cannot properly assess, and the question whether or not it would be in the interests of commerce and the public generally is, in my view, much better left for the legislature’ (1983) 1 AC 520, 536–537.

Of course, the Consumer Protection Act 1987 has now provided limited exceptions to the privity principle in this particular context.

57 Cf Adams and Brownsword, ‘Law Reform, Law-Jobs, and Law Commission No 160’ (1988) 51 Modern Law Review 481. And see Markesinis, ‘An Expanding Tort Law - The Price of a Rigid Contract Law’ (1987) 103 Law Quarterly Review 354, esp at pp 356–371 for an illuminating discussion of the German concept of a contract with protective effects.

58 See eg Lord Denning 's judgment in Morris v CW Martin and Sons Ltd (1966) 1 QB 716, 729–730.

59 This doctrine was criticised by Pollock as inconsistent with the privity rule (see his note on Cooke and Sons v Eshelby (1887) 12 App Cas 271 in (1887) 2 Law Quarterly Review 358, 359); see, also, Keighley Muxsted v Durunt (1901) AC 240. However, the rule is of some antiquity, its origin perhaps lying in the right of the principal of a factor to intervene in the factor 's bankruptcy to claim his goods or the price of them received by the agent; see Gurrutt v Cullum (1710) Bull NP 42. If the goods belonged to the principal and not to the agent, it followed that the principal could recover the price from third parties; see DrinkwateR v Goodwin (1775) 1 Cowp 251, and George v Clagett (1779) 7 TR 359. By the early nineteenth century, the undisclosed principal could sue for non-acceptance; see Cathay v Fennell (1830) 10 B & C 671, and Robson v Drummond (1831) 2 B & C 303. Equally, by the late eighteenth century, the third party 's rights against the undisclosed principal were fully established (see Hoare v Dawes (1780) 1 Doug 371, and Nelson v Powell (1784) 3 Doug KB 410), the latter 's liability perhaps deriving from the liability of masters for contracts made by their servants. The doctrine evolved, therefore, before modern theories of contract, of which the privity rule forms a part; see Muller-Freienfels, ‘The Undisclosed Principal’ (1953) 16 Modern Law Review 299. In commercial contracts, the personal character of the principal usually does not matter; see Stoljar, The Law of Agency (Sweet and Maxwell, 1961) p 225. The better view seems to be, not that the contract is that of the principal, but that the principal is intervening in a contract he did not make (see Bowstead on Agency (15th edn, Sweet and Maxwell, 1985) p 313). The relevance of this analysis to our argument will be particularly apparent.

60 For a sustained critique of the law along these lines, see Battersby, ‘Exemption Clauses and Third Parties’ (1975) 25 University of Toronto LJ 371.

61 And, of course, A recovers £100, which is better than the worthless remedy he has against B, who is insolvent.

62 This, we understand, was the problem in Junior Books itself; and, similarly, see Pacific Associates Inc v Baxter (1989) 3 WLR 1150. See, also, Atiyah, An Introduction to the Low of Contract (4th edn, Clarendon Press, Oxford, 1989) at pp 396–398, esp note 20.