many of the factual circumstances which might justify a transferred loss claim, an alternative claim in tort might be available to the third party for its loss.164 A further contrast with English law might be said to lie in the preference given by German law, as with Scots law, to performance remedies. This has the effect that there are circumstances where the question of damages simply does not arise, the party in default being required to remedy its breach (or opting so to remedy, as it may sometimes do under German law165). This may be one reason why a case like St Martin’s has not, as yet, arisen in German law.

Sensibly, it is suggested, German law has moved away from an earlier analysis of transferred loss claims as resting upon the supposed intention of the parties, said to give rise to an implied term that third party losses would be recoverable,166 in favour of the view that objective policy requirements mandate transferred loss claims.167 It was argued earlier that English law would do well to entrench an emerging similar view.

6.  Conclusion on third parties

As the discussion in this chapter has shown, there is quite a diverse treatment in the jurisdictions studied in the treatment of third parties to a contract. A universal phenomenon, however, even in systems like Roman law with a clear antipathy if not objection to the rights of third parties, is the invention by contracting parties of ways to avoid legal restrictions on conferring rights on third parties. The reason for such party-led developments is clear: contracting parties wish to be able to benefit third parties and will take whatever steps they can, using any available institutions and rules, to see that their will is given effect to. Even in those systems where third parties have historically been viewed with suspicion, the law has been forced to respond to the evident desire to benefit such third parties by (sometimes grudgingly) developing the law: so, for instance, because the right of legal representation in Roman law through appointment of a procurator in rem suam could not meet the needs of commerce, the concepts of agency and cession were developed. Development of a right given to an extra-contractual third party to enforce in its own name a benefit conceived in its favour required a longer period of gestation, but the

164 BGH NJW 1985, 2411. 165 See for instance, §635 BGB.

166See for examples of the subjective, intention view of transferred loss liability, RGZ 170, 246 and BGHZ 15, 224.

167BGHZ 40, 91.

importance attached by the canon law to the keeping of one’s word, and thus to enforcement of promises made even in favour of third parties, justified the eventual development of the stipulatio alteri, albeit very belatedly in the Common law. As has been discussed, it is possible – though not the reality in every system – to view such a directly enforceable third party right in promissory terms. The same, however, cannot be said of assignment or transferred loss claims, their having the alternative classifications noted above.

That not every case where a third party derives a benefit from a contracting party should be seen in promissory terms is unsurprising. The very fact that a third party is not a party to the contractual relationship from which an alleged right derives should already suffice to indicate that any right which it might derive from the relationship might take one of a number of forms, perhaps promissory, but equally perhaps tortious, restitutionary, or sui generis in nature, depending upon the precise circumstances of the connection. In the same way, the variety of types of third party rights have no invariable connection with the idea of detrimental reliance or the conferment of a benefit. Some such rights, such as certain tort claims, depend upon a demonstration of reliance by a third party, but not all do; the same may be said of the receipt of a benefit, for whilst it has some relevance to the establishment of certain third party rights, that is not invariably so. The idea of a third party right, in the widest sense of that term, is simply too extensive to attract a single obligational classification. That does not mean, however, that promise cannot provide a useful and appropriate characterisation of certain types of third party right. In the case of the stipulatio alteri, it has been suggested that it can.