Beyond Common Law: Contractual Privity in Australia and South Africa

Privity and the inter-twined notion of consideration are key features of the classical Common law of contract. The need to protect reasonable expectations has created problems for Common law courts in the past, however, leading to adaptation of the doctrine of privity by both precedent and statute in many jurisdictions. This paper will move beyond the Common law in its analysis, however, through the use of both comparative law and sociolegal theory. The target jurisdictions of Australia and South Africa have both historically been strongly influenced by the English Common law of contract, but South Africa is a mixed legal system and Australian law has also developed along an independent path, particularly with regard to the protection of reasonable expectations. Our analysis will be based around three specific case studies, in order to contextualize the doctrine of privity and to describe the ‘law in action’, following an approach which draws on relational, or socially embedded, analysis. Our ultimate aim is to move from micro, black-letter case studies to an emergent macro picture. Given the (historically) cornerstone status of privity in the Common law, this will allow us to comment on themes such as convergence and divergence from the classical law of contract, and will also give an insight into comparative legal culture and context in both target countries.