Timothy Liau

Privity is generally understood as a rule comprising a burdens limb and a more controversial benefits or ‘rights’ limb. This rendition of privity is too simplistic. Privity has multiple aspects, but its underlying complexity has been obscured by an overwhelming focus on ‘rights’, explaining in part the persistent unclarity plaguing the area. In this article, I argue that an elision of concepts has hampered our understanding of privity and its reform. The literature on contractual rights to performance and secondary rights to damages for their breach is legion. By contrast, standing, as a separate and distinct concept, has been overlooked. These are concepts that need to be more clearly differentiated. While not a panacea to resolve all issues, it is a necessary step to a firmer handle over the distinct issues at stake, and to opening up a novel angle to privity reform—third-party standing—the road not taken.

Does private law punish? Should it? I question whether private law punishes in a form other than through a court order of punitive damages, by exploring a less obvious form of punishment to which less attention has been paid—‘punitive disentitlement’—wherein a person is disentitled from a legal right, defence, or other legal advantage they would and should otherwise be entitled to, because of their misconduct. Potential instances are identified and analysed in a broad survey of private law doctrine, including the laws of property, contract, unjust enrichment and torts. The strongest reason for punitive disentitlement is its immunity to a powerful normative objection to punitive damages. Punitive disentitlement is not free from difficulties, however. It inherits some of the difficulties associated with punitive damages; it also runs into a separate set of objections. We should therefore be more alert to, and cautious about, its continued use.