Also known as: lack of privity · no privity · privity defense
Written by attorneys — see sources below.
2 senses
A condition in which parties lack a special estate or tenurial relationship. The absence of such privity does not prevent creation of a servitude by written grant or agreement that satisfies applicable formalities and is recorded.
A condition in which parties lack a special estate or tenurial relationship. The absence of such privity does not prevent creation of a servitude by written grant or agreement that satisfies applicable formalities and is recorded.
The lack of a direct contractual relationship between a plaintiff and a defendant. This absence does not bar recovery for negligence or breach of implied warranty when the defendant placed a dangerous product into the stream of commerce or undertook a duty extending to foreseeable third parties.
The lack of a direct contractual relationship between a plaintiff and a defendant. This absence does not bar recovery for negligence or breach of implied warranty when the defendant placed a dangerous product into the stream of commerce or undertook a duty extending to foreseeable third parties.
Each sense below has its own examples, sources, and questions.
Seaside Resorts granted Coastal Adventures a recorded perpetual right to use its private dock for guest transfers even though Coastal held no lease or other possessory interest in the hotel land. When new management attempted to revoke the right, the court upheld the servitude. The absence of any privity of estate between the parties did not invalidate the recorded grant.
1 common questions
No. Modern servitudes law permits creation of a servitude by written, recorded grant even when the parties share no estate or tenurial relationship. The recorded instrument alone satisfies the formal requirements and binds successors.
Supporting sources
Adrian purchased a used truck whose brake system had been negligently designed by the original manufacturer. The truck rolled after the brakes failed and injured Adrian. Adrian sued the manufacturer despite having bought the vehicle from a dealer. The absence of contractual privity did not defeat the negligence claim.
Nancy Denny was severely injured when the Ford Bronco II that she was driving rolled over on June 9, 1986. The rollover occurred after Denny slammed on her brakes to avoid a deer that had walked directly into the vehicle's path. The Bronco II was a downsized small utility vehicle designed for off-road use on unpaved and rugged terrain. Ford marketed the vehicle as suitable for commuting, suburban and city driving, and family use in snow and ice. Denny and her spouse sued Ford Motor Co. asserting claims for negligence, strict products liability and breach of implied warranty of merchantability under UCC 2-314(2)(c) and 2-318. The case went to trial in the District Court for the Northern District of New York in October of 1992. Plaintiffs introduced evidence that the Bronco II had a high center of gravity, narrow track width and short wheel base that made it prone to rollover on paved roads. Ford introduced evidence that those design features were necessary to the vehicle's off-road capabilities and that it had not been designed primarily as a passenger car. The jury found that the Bronco II was not defective under the strict products liability claim but that Ford had breached the implied warranty of merchantability and that the breach proximately caused Nancy Denny's injuries. Following apportionment the plaintiff was awarded judgment in the amount of $1.2 million. Ford moved for a new trial under Federal Rule of Civil Procedure 59(a) arguing that the verdicts were irreconcilable. The trial court rejected the motion. On appeal the Second Circuit certified three questions of New York law to this Court.
View caseAnika bought a used car whose wheel collapsed because of a manufacturing defect introduced by the automaker. The collapse caused an accident that injured Anika. Anika sued the automaker even though she had no direct contract with it. The absence of privity did not bar the negligence action.
The defendant Buick Motor Company manufactured automobiles and purchased ready-made wheels from the Imperial Wheel Company of Flint, Michigan. The Imperial company had furnished the defendant with eighty thousand wheels, none of which had proved defective prior to this incident. The defendant sold one such automobile to a firm of automobile dealers in Schenectady, who in turn sold the car to the plaintiff. While the plaintiff was driving the automobile at a speed of only eight miles an hour, a wheel collapsed because it was made of defective wood whose spokes crumbled into fragments. The plaintiff was thrown out and injured. The wheel had been bought from the outside manufacturer rather than produced by the defendant. Evidence showed that the defects could have been discovered by reasonable inspection, which the defendant omitted. There was no claim that the defendant knew of the defect and willfully concealed it. The car was designed to go fifty miles an hour. It had seats for three persons. The plaintiff commenced an action for negligence against the defendant. The case was tried to a jury. The New York Court of Appeals affirmed the judgment with costs.
View caseAtlas Ventures commissioned an audit from Arthur Young that the firm knew would be shown to potential lenders. A bank relied on the audit to make a loan that later defaulted. The bank sued the accountants for negligence despite lacking any contract with them. The absence of privity did not automatically defeat the claim.
Albert rode in a coach whose defective wheel caused an accident that injured him. The coach had been sold by the manufacturer to a third party under a maintenance contract. Albert sued the manufacturer despite having no contractual relationship with it. Under the older rule the absence of privity barred recovery.
Amber's husband suffered a workplace injury caused by a defective machine sold by Argonne. Amber sued Argonne for loss of consortium even though she had never dealt with the company. The absence of privity did not prevent her from stating a viable claim.
3 common questions
Courts are divided. Some limit the warranty to the original buyer in privity with the builder. Others extend it to later purchasers when latent defects impair habitability, treating the warranty as running with the property.
Supporting sources
No. The absence of privity alone does not defeat a negligence action by a foreseeable relying third party. Liability is limited by the Restatement approach to intended users rather than by a strict privity requirement.
Supporting sources
Under the older rule a manufacturer owed no duty to a remote user lacking privity. Modern doctrine rejects that limit when the product is dangerous and reaches the user without substantial change.
Supporting sources
…(Ct. App. 1936); Ward v. Morehead City Sea Food Co. , 171 N. C. 33, 87 S. E. 958 (Sup. Ct. 1916). Most of the cases where lack of privity has not been permitted to interfere with recovery have involved food and drugs. Haut v. Kleene , 320 Ill. App. 273, 50 N. E. 2d 855 (App. Ct. 1943); Welter v. Bowman Dairy Co.,…