Also known as: lack of privity · no privity · privity defense
Written by attorneys · grounded in primary & secondary sources — see 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.
Select any source to read its text and confirm it supports the definition.
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.
Select any source to read its text and confirm it supports the definition.
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.
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.
Anika 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.
Atlas 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.
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.
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…(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.,…