Also known as:lacking privity · no privity · absence of privity · privity defense
Written by attorneys · grounded in primary & secondary sources — see below
An absence of a direct contractual or estate relationship between parties that does not preclude creation of a servitude or recovery in tort for physical harm to foreseeable plaintiffs.
Sources & Authorities
How it applies
Common Examples
5
Recorded Access Agreement Creates Servitude
Tabitha and Nova Rural executed and recorded a written agreement granting Nova Rural permanent truck access across Tabitha's fields for a $10,000 payment. Tabitha later conveyed the farm to her daughter by warranty deed. The daughter erected barriers and refused access. Nova Rural sued for declaratory and injunctive relief. The court held that the recorded agreement created an enforceable servitude binding the daughter even though Nova Rural owned no adjacent land.
Intended Beneficiaries Sue Drafting Attorney
An attorney negligently drafted a will that failed to create the intended trusts for the testator's grandchildren. After the testator's death the grandchildren discovered the error and sued the attorney in tort. The attorney moved to dismiss on the ground that the grandchildren lacked privity. The court denied the motion and permitted the action to proceed.
Select any source to read its text and confirm it supports the definition.
Restatements
Study Supplements
Lucas v. Hamm364 P.2d 685, 690 (Cal. 1961)
Car Buyer Injured by Defective Brakes
A manufacturer sold brake calipers to a repair shop that installed them on a customer's car. The calipers failed and the car struck a pedestrian. The pedestrian sued the manufacturer in negligence. The manufacturer moved for summary judgment arguing absence of any contractual relationship with the pedestrian. The court denied the motion.
A buyer purchased a sport utility vehicle from a dealer. The vehicle rolled over during normal use and injured the buyer. The buyer sued the manufacturer on both warranty and strict products liability theories. The manufacturer argued that lack of direct privity barred the claims. The court rejected the argument on the strict liability count.
Denny v. Ford Motor Co.87 N.Y.2d 248, 639 N.Y.S.2d 250, 662 N.E.2d 730, 736 (1995)
Third Party Enforces Payment Promise
A debtor promised a creditor to pay a sum of money to a third person in satisfaction of the debtor's obligation. The third person sued the debtor to enforce the promise. The debtor defended on the ground that the third person was not a party to the original agreement. The court permitted the third person to recover.
Lawrence v. Fox20 N.Y. 268 (1859)
Common questions
Frequently Asked
4
Does lack of privity prevent creation of a servitude under the Restatement (Third) of Property?+
No. The Restatement expressly states that no privity relationship between the parties is necessary to create a servitude. A recorded written instrument granting a permanent right that runs with the land is enforceable against successors even when the benefited party owns no touching land.
Supporting sources
Can a manufacturer be held liable in negligence to a plaintiff who never purchased the product?+
Yes. Modern negligence doctrine rejects contractual privity as a limitation on a manufacturer's duty. The duty of reasonable care extends to all persons foreseeably endangered by a negligently made product, including users and bystanders who had no direct transaction with the manufacturer.
Supporting sources
Does absence of privity bar a strict products liability claim against a commercial seller?+
No. Strict products liability applies to any commercial seller that places a defective and unreasonably dangerous product into the stream of commerce. Liability attaches even when the injured user or consumer had no contractual relationship with the seller and even when the seller exercised all possible care.
Supporting sources
Can intended beneficiaries of a negligently drafted will sue the drafting attorney in tort?+
Yes. The lack of privity between the intended beneficiaries and the attorney does not preclude a tort action. The attorney owes a duty of care to the beneficiaries whose interests the will was meant to protect, and the beneficiaries may recover for losses caused by the attorney's negligence.
Supporting sources
20 N.Y. 268 (1859)Contracts
…in the defendant's hands, the judgment was arrested because no consideration from the plaintiff to the defendant was alleged and no privity shown. Similar observations appear in Lilly v. Hays (5 Ad. & Ellis, 548). The question was involved in confusion by earlier Massachusetts cases, and the Supreme Court of that State at one…
TortsNegligence · The duty question, including failure to act, unforeseeable plaintiffs, and obligations to control the conduct of third partiesUBEIntermediate