Tweddle v Atkinson (1861)

This is the parent of the English rule that a stranger to a contract cannot sue on it, even when the contract was made expressly for his benefit and even when the contract says in terms that he may sue. For an Indian student the case is essential background: the Indian Contract Act 1872 lets consideration move from "the promisee or any other person" (s. 2(d)), so Indian courts have had to decide how far the English rule of Tweddle still applies. You cannot answer a privity question in an Indian exam without first stating the English rule this case laid down.

William Tweddle (the plaintiff) married the daughter of William Guy. Before the marriage, both fathers — William Guy and John Tweddle — had verbally promised marriage portions. After the marriage, the two fathers put their promises into a written agreement dated July 1855. By it, Guy was to pay £200 and John Tweddle £100 to William Tweddle on or before 21 August 1855, and the agreement further provided that "the said William Tweddle has full power to sue the said parties in any Court of law or equity for the aforesaid sums hereby promised and specified."

Guy died without paying. The plaintiff sued Guy's executor (the defendant, Atkinson) for the £200. The defendant demurred: the plaintiff was a stranger to the agreement and to the consideration.

1. Can a person who is not a party to a contract, and from whom no consideration moved, sue on a promise made for his benefit?
2. Is there an exception where the promisee is a parent and the contract is made to provide for his child — i.e. does natural love and affection make the child a party to the consideration?

Judgment for the defendant. The plaintiff could not sue.

Wightman J acknowledged that some old decisions allowed a near relative of the promisee to sue, "But there is no modern case in which the proposition has been supported. On the contrary, it is now established that no stranger to the consideration can take advantage of a contract, although made for his benefit."

Crompton J held that the old cases were decided when assumpsit was treated as a kind of tort, and that "The modern cases have, in effect, overruled the old decisions; they shew that the consideration must move from the party entitled to sue upon the contract." He rejected the idea that the son could be a party for one purpose only: "It would be a monstrous proposition to say that a person was a party to the contract for the purpose of suing upon it for his own advantage, and not a party to it for the purpose of being sued." To the argument that the father acted as the son's agent, he replied that this "ought also to make the son liable upon it." He was "prepared to overrule the old decisions".

Blackburn J noted that counsel for the plaintiff admitted the general rule "that in general no action can be maintained upon a promise, unless the consideration moves from the party to whom it is made." The claimed exception for a father's natural love and affection failed, because the cases showed "that natural love and affection are not a sufficient consideration whereon an action of assumpsit may be founded." He said the court could not overrule Dutton v Poole, a decision of the Exchequer Chamber, but that there was a distinct ground on which that case could not be supported.

The express clause giving the plaintiff "full power to sue" did not change the result.

A person who is a stranger to the consideration cannot sue on a contract, even though the contract was made for his benefit: the consideration must move from the party entitled to sue upon it. A close family relationship between the promisee and the beneficiary does not make the beneficiary a party to the consideration, because natural love and affection is not sufficient consideration for an action of assumpsit.

• Explain the doctrine of privity of contract. Is it part of Indian law? Start with Tweddle v Atkinson as the English source, quote Wightman J's statement of the rule, then contrast s. 2(d) of the Indian Contract Act and the Indian cases (such as Chinnaya v Ramayya) on consideration moving from a third person.
• Problem question: A promises B to pay money to C; C sues A. Under the English rule in Tweddle, C fails as a stranger to the consideration — even if the contract says C may sue. Then discuss whether the Indian position differs.
• Point worth marks: Crompton J's "monstrous proposition" — a party cannot be a party for the purpose of suing but not for the purpose of being sued.