the third party has the same rights to performance and remedies for non­ -performance as if the contracting party was bound to render the performance under a binding unilateral undertaking in favour of the third party.

The taxonomic approach of this default provision is noteworthy: in effect, it treats a third party who is the intended recipient of a performance as a promisee under a unilateral promise. The default nature of the right given to other third parties (those who are not to receive a performance from one of the parties) is not clarified, however, so that, for instance, a third party upon whom an indemnity was conferred would not automatically be characterised as a promisee under a unilateral promise, though (given the permissive terms of Article II.-9:302) there would seem to be nothing preventing the parties from providing positively that such an indemnity is in the nature of a unilateral promise by one of the parties not to hold the third party liable.

Whatever else the contracting parties may provide, it appears that it would be inconsistent with the terms of the DCFR’s articles on third party rights to conceive of the third party as accepting a contractual offer in its favour. Such an inconsistency would seem to arise from the fact that (i) third party rights may be conferred upon parties who are not yet even in existence – that could only be so if no acceptance were required to constitute the third party’s entitlement; and (ii) the third party is entitled to reject the right or benefit,100 suggesting that such right or benefit does not arise as a result of the agreement of the third party (were that so, such an entitlement would be unnecessary, as the third party could simply fail to accept the intended entitlement if it did not wish it).

The DCFR framework for third party rights leaves the nature of the third party’s rights to be determined by the contracting parties, conceivably in a promissory way. This is consistent with the broad approach of other parts of the DCFR in seeking to permit as many possible character­ isations of circumstances as is consistent with the coherence of the law of obligations as a whole.

(e)  Conclusion on third party rights under contract

A simple conclusion on the above comparative analysis of third party rights under contract is that, while all the systems studied now recognise (in contrast with the Roman law and Common law prior to 1999) a

100  Provided for in Art. II.-9:303(1).