Dutton v Poole (1678) 2 Lev 210

Contract law – Third party – Privity of contract


A son made a contract with his father for his father to not cut down an oak woodland. As consideration for this, the son would make a payment to his sister of £1000 once she had married. The money gained from the woodland would have been paid to the sister. The father died before the sister was married and the son subsequently refused to pay his sister the money as was previously agreed, at the time of her marriage. The sister sued her brother for the amount that was originally promised between the father and son.


The concept of privity of contract had not been fully established at this stage and therefore this decision had significant importance to the broader subject. The court had to understand whether the daughter could be considered to be privy to the contract between the father and son regarding the payment. Within this, it was vital for the court to establish whether the daughter had given consideration for the promise that was made by the son, to his father, to pay the daughter the sum of money upon her marriage.


The court found in favour for the sister on the basis that the relationship between the father and the daughter had made the sister a party to the agreement, even if she was not included at the time the contract was agreed. The relationship between father and daughter was found to extend the consideration that the father gave in the promise to the children. (Scroggs CJ)