Robertson v Wait (1853) 8 Ex. 299
Contract law – Shipping – Privity of contract
Facts
Robertson chartered for a ship, owned by the defendants, to cargo goods from Liverpool to Calcutta. There was a clause in the agreement between the parties which consigned the ship to E & Co. for the homeward freight, on the basis that they would pay commission for this. The defendants consigned the ship to E & Co. for the trip but agreed with another party that they could have the ship for the homeward trip. The plaintiffs brought a claim against the defendants for breaching their contract but did not establish the terms of the commission structure within the sub-agreement.
Issue
The overriding question for the court was whether the plaintiffs, in this instance, could claim for the breach of the contractual terms between the defendant and E & Co., despite the fact that the plaintiffs were not a party to the agreement. Further to this, the court had to consider the grounds of the plaintiff’s appeal on the basis that they could not explain or define the commission structure which was a feature of their agreement with E & Co.
Held
The court held that the term in the contract was for the benefit for E & Co. and on this basis, as the plaintiffs had the agreement with E & Co., they were able to act as trustees to recover the benefit of the agreement. The court’s decision was unaffected by the fact that the commission structure, which had supposedly been agreed by the parties, could not be clearly defined.
Updated 20 March 2026
This case summary relates to a nineteenth-century decision on privity of contract and the trust of a contractual promise, and the core common law principles it illustrates remain historically accurate. However, readers should be aware that the broader legal landscape surrounding third-party rights in contract has changed significantly. The Contracts (Rights of Third Parties) Act 1999 now provides a statutory mechanism by which a third party may enforce a contractual term in certain circumstances, reducing the practical need to rely on the trust device discussed in this case. The 1999 Act does not abolish the common law rules, and Robertson v Wait retains its relevance as an illustration of the pre-statutory position and the trust exception to privity. Students should ensure they consider the 1999 Act alongside this and related common law authorities when analysing third-party rights in English contract law.
