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SUMM ARY CONTENTS
1. Early History 1
2. Modern History 13
3. Exceptions 44
4. Statutory Exceptions 103
5. Operation of the Rule with Relation to Exemption Clauses 140
6. Rights of the Promisee 159
7. Attempts to Impose Liabilities or Burdens on Non-Parties 249
8. The Contracts (Right of Third Parties) Act 1999 264
9. Statutory Reform in Other Jurisdictions 288
10. The Unidroit Principles of International Commercial Contracts 322
Index 333
vii
CONTENTS
1. Early History
Introduction 1.01
Roman Law 1.03
Medieval Common Law 1.05
The Rise of Assumpsit 1.07
The Nineteenth Century 1.13
The Civil Law 1.26
American Law 1.27
2. Modern History
Introduction 2.01
Dunlop and the Affirmation of the Privity Rule 2.02
After Dunlop and the Call for Reform 2.07
Privity, Consideration, Parties, Promisees, and Joint Promisees 2.26
3. Exceptions
Introduction to Exceptions 3.01
Tort 3.03
Covenants that Run with the Land 3.12
Collateral Contracts 3.18
Public Policy 3.21
Restitution 3.22
Letters of Credit 3.23
Bailment 3.26
ix
Contents
Agency 3.27
Trust 3.33
Assignment 3.51
4. Statutory Exceptions
Introduction 4.01
Insurance 4.03
Life Insurance 4.04
Fire Insurance 4.10
Motor Insurance 4.14
Third Parties Rights Against Insurers 4.22
Marine Insurance 4.33
Property Law 4.35
Negotiable Instruments 4.45
Bills of Lading 4.49
Manufacturers 4.56
x
Contents
xi
Contents
Index 333
xii
TABLE OF CASES
xiii
Table of Cases
xiv
Table of Cases
xv
Table of Cases
xvi
Table of Cases
Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106 �����������������������3.14
Cooper v Micklefield Coal and Lime Co (1912) 107 LT 457��������������������������������������������������3.79
Co-operative Bulk Handling Ltd v Jennings Industries Ltd (1996) 17 WAR 257�������������������2.21
Co-operative Group Ltd v Birse Developments Ltd [2014] EWHC 530 (TCC)������������3.39, 3.82
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1������������������ 6.05
Corin v Patton (1990) 169 CLR 540���������������������������������������������������������������������������������������3.62
Cosgrove v Horsfall (1946) 175 LT 334��������������������������������������������������������������������������������� 6.20
Cossill v Strangman (1963) 80 WN (NSW) 628 �������������������������������������������������������������������3.72
Coulls v Bagot’s Executor and Trustee Co Ltd (1967) 119 CLR 460���������� 1.16, 2.02, 2.09, 2.28,
2.32, 2.34–2.44, 2.47, 2.48, 3.49, 6.06, 6.28, 6.41, 6.163
Court Line Ltd v Aktiebologet Gotaverken (The ‘Halcyon the Great’) [1984]
1 Lloyd’s Rep 283������������������������������������������������������������������������������������������������������������3.70
Cousins v Sun Life Assurance Society [1933] Ch 126�������������������������������������������4.05, 4.07, 4.08
Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192���������������������������������������������9.07
Crest Nicholson Residential (South) Ltd v McAllister [2004] 1 WLR 2409���������������������������3.17
Croker v New York Trust Co (1927) 156 NE 81�������������������������������������������������������������������� 6.06
Crow v Rogers (1724) 1 Strange 592, 93 ER 719��������������������������������������������������� 1.12, 1.13, 1.27
Crowden v Aldridge [1993] 1 WLR 433���������������������������������������������������������������������������������3.43
Crowe v Price (1889) 22 QBD 429�����������������������������������������������������������������������������������������3.89
Cunningham v Harrison [1973] QB 942��������������������������������������������������������������������������������6.39
Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 �����������������������������������������������6.17
Customs and Excise Commissioners v Barclays Bank plc [2006] UKHL 28���������������� 3.04, 3.05
xvii
Table of Cases
xviii
Table of Cases
xix
Table of Cases
Habibsons Bank Ltd v Standard Chartered Bank (Hong Kong) Ltd [2011]
QB 943 ���������������������������������������������������������������������������������������������������������������������������3.57
Hadley v Baxendale (1854) 9 Ex 341, 156 ER 145�������������������������������������� 6.46, 6.55, 6.56, 6.147
Hall v Busst (1960) 104 CLR 206�������������������������������������������������������������������������������������������3.82
Halsall v Brizzell [1957] Ch 169 ��������������������������������������������������������������������������������������������� 7.14
Hamburg Star, The [1994] 1 Lloyd’s Rep 399������������������������������������������������������������������������ 3.26
Hamzeh Malas & Sons v British Imex Industries Ltd [1958] 2 QB 127���������������������������������3.24
Hanak v Green [1958] 2 QB 9�����������������������������������������������������������������������������������������������3.102
xx
Exploring the Variety of Random
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The Project Gutenberg eBook of The
Rocketeers Have Shaggy Ears
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Illustrator: Al McWilliams
Language: English
Seven hours later it lightened a little, and day had come. Hague and
the Sergeant had pulled the early morning guard shift, and began
rolling the other four from their tiny individual tents.
Bormann staggered erect, yawned lustily, and swore that this was
worse than spring maneuvers in Carolina.
"Shake it," Brian snarled savagely. "That whistle will blow in a
minute."
When it did sound, they buckled each other into pack harness and
swung off smartly, but groaning and muttering as the mud dragged
at their heavy boots.
At midday, four hours later, there was no halt, and they marched
steadily forward through steaming veils of oppressive heat, eating
compressed ration as they walked. They splashed through a tiny
creek that was solidly slimed, and hurried ahead when crawling
things wriggled in the green mass. Perspiration ran in streams from
each face filing past on the trail, soaked through pack harness and
packs; and wiry Hurd began to complain that his pack straps had cut
through his shoulders as far as his navel. They stopped for a five
minute break at 1400, when Hurd stopped fussing with his back
straps and signalled for silence, though the other five had been too
wrapped in their own discomfort to be talking.
"Listen! Do you hear it, Lieutenant? Like a horn?" Hurd's wizened rat
face knotted in concentration. "Way off, like."
Hague listened blankly a moment, attempted an expression he fondly
hoped was at once intelligent and reassuring, then said, "I don't hear
anything. You may have taken too much fever dope, and it's causing
a ringing in your ears."
"Naw," with heavy disgust. "Listen! There it goes again!"
"I heard it." That was Sergeant Brian's voice, hard and incisive, and
Hague wished he sounded like that, or that he would have heard the
sound before his second in command. All of the six were hunched
forward, listening raptly, when the Lieutenant stood up.
"Yes, Hurd. Now I hear it."
The whistle blew then, and they moved forward. Hague noticed the
Sergeant had taken a post at the rear of the little file, and watched
their back trail warily as they marched.
"What do you think it was, sir?" Bucci inquired in the piping voice that
sounded strange coming from his deep chest.
"The Lord knows," Hague answered, and wondered how many times
he'd be using that phrase in the days to come. "Might have been
some animal. They hadn't found any traces of intelligent life when we
left the Base Camp."
But in the days that followed there was a new air of expectancy in
the marchers, as if their suspicions had solidified into a waiting for
attack. They'd been moving forward for several days.
Hague saw the pack before any of his men did, and thanked his
guiding star that for once he had been a little more alert than his
gun-section members.
The canvas carrier had been set neatly against one of the buttressing
roots of a giant tree bole and, from the collecting bottles strapped in
efficient rows outside, Hague deduced that it belonged to Bernstein,
the entomologist. The gunnery officer halted and peered back into
the gloom off the trail, called Bernstein's name; and when there was
no reply moved cautiously into the hushed shadows with his carbine
ready. He sensed that Sergeant Brian was catfooting behind him.
Then he saw the ghostly white bundle suspended six feet above the
forest floor, and moved closer, calling Bernstein's name softly. The
dim bundle vibrated gently, and Hague saw that it hung from a giant
white lattice radiating wheel-like from the green gloom above. He
raised his hand to touch the cocoon thing, noted it was shaped like a
man well-wrapped in some woolly material; and on a sudden hunch
pulled his belt knife and cut the fibers from what would be the head.
It was Bernstein suspended there, his snug, silken shroud bobbing
gently in the dimness. His dark face was pallid in the gloom, sunken
and flaccid of feature, as though the juices had been sucked from his
corpse, leaving it a limp mummy.
The lattice's thick white strands vibrated—something moved across it
overhead, and Hague flashed his lightpak up into the darkness.
Crouched twenty feet above him, two giant legs delicately testing the
strands of its lattice like web, Hague saw the spider, its bulbous
furred body fully four feet across, the monster's myriad eyes glittering
fire-like in the glow of Hague's lightpak, as it gathered the great legs
slightly in the manner of a tarantula ready to leap.
It gathered the great legs slightly ... ready to leap.
Brian's sharp yell broke Hague from his frozen trance. He threw
himself down as Brian's rifle crashed, and the giant arachnid was
bathed in a blue-white flash of explosive light, its body tumbling
down across the web onto Hague where he lay in the mud. The
officer's hoarse yells rang insanely while he pulled himself clear of the
dead spider-beast, but he forced himself to quiet at the sound of the
Sergeant's cool voice.
"All clear, Lieutenant. It's dead."
"Okay, Brian. I'll be all right now." Hague's voice shook, and he
cursed the weakness of his fear, forcing himself to walk calmly
without a glance over his shoulder until they were back on the trail.
He led the other four gunners back to the spider and Bernstein's
body, as a grim object lesson, warned them to leave the trail only in
pairs. They returned their weary footslogging pace down the muddy
creek marked by Clark's crew. When miles had sweated by at the
same steady pace, Hague could still feel in the men's stiff silence
their horror of the thing Brian had killed.
The tenth day after the crash of Patrol Rocket One, unofficially known
as the Ration Can, glimpses of skylight opened over the trail Clark's
crew were marking; and Hague and his men found themselves
suddenly in an opening where low, thick vines, and luxuriant, thick-
leaved shrubs struggled viciously for life. Balistierri, the zoologist,
slight wisp of a dark man always and almost a shadow now, stood
wearily beside the trail waiting as they drew up. Their shade-blinded
eyes picked out details in the open ground dimly. Hague groaned
inwardly when he saw that this was a mere slit in the forest, and the
great trees loomed again a hundred yards ahead. Balistierri seized
Hague by the shoulder and pointed into the thick mat of green,
smiling.
"Watch, all of you."
He blew a shrill blast on his whistle and waited, while Hague's
gunners wondered and watched. There was a wild, silvery call, a
threshing of wings, and two huge birds rose into the gold tinted air.
They flapped up, locked their wings, and glided, soared, and wheeled
over the earth-stained knot of men—two great white birds, with
crests of fire-gold, plumage snowy save where it was dusted with
rosy overtones. Their call was bell-like as they floated across the
clearing in a golden haze of sunlight filtered through clouds.
"They're—they're like angels." It was Bormann, the tough young
sentimentalist.
"You've named them, soldier," Balistierri grinned. "I've been trying for
a name; and that's the best I've heard. Bormann's angels they'll be.
In Latin, of course."
Unfolding vistas of eternal zoological glory left Bormann speechless
and red-faced. Sergeant Brian broke in.
"I guess they would have made those horn sounds. Right,
Lieutenant?" His voice, dry and a little patronizing, suggested that
this was a poor waste of valuable marching time.
"I wouldn't know, Sergeant," Hague answered, trying to keep dislike
out of his voice, but the momentary thrill was broken and, with
Balistierri beside him, Gunnery Officer Hague struck out on the trail
that had been blasted and hacked through the clearing's wanton
extravagance of greedy plant life.
As they crossed the clearing, Bucci tripped and sprawled full length in
the mud. When he tried to get up, the vine over which he'd stumbled
clutched with a woody tendril that wound snakelike tightly about his
ankle; and, white-faced, the rest of the men chopped him free of the
serpentine thing with belt knives, bandaged the thorn wounds in his
leg, and went on.
The clearing had one more secret to divulge, however. A movement
in the forest edge caught Brian's eye and he motioned to Hague, who
followed him questioningly as the Sergeant led him off trail. Brian
pointed silently and Hague saw Didrickson, Sergeant in charge of
Supplies, seated in the lemon-colored sunlight at the forest edge, an
open food pack between his knees, from which he snatched things
and swallowed them voraciously, feeding like a wild dog.
"Didrickson! Sergeant Didrickson!" the Lieutenant yelled. "What are
you doing?"
The supply man stared back, and Hague knew from the man's face
what had happened. He crouched warily, eyes wild with panic and
jaw hanging foolishly slack. This was Didrickson, the steady, efficient
man who'd sat at the chart table the night they began this march. He
had been the only man Devlin thought competent and nerveless
enough to handle the food. This was the same Didrickson, and
madder now than a March hare, Hague concluded grimly. The
enlisted man snatched up the food pack, staring at them in wild fear,
and began to run back down the trail, back the way they'd come.
"Come back, Didrickson. We've got to have that food, you fool!"
The madman laughed crazily at the sound of the officer's voice,
glanced back for a moment, then spun and ran.
Sergeant Brian, as always, was ready. His rifle cracked, and the
explosive missile blew the running man nearly in half. Sergeant Brian
silently retrieved the food pack and brought it back to Hague.
"Do you want it here, Lieutenant, or shall I take it up to the main
party?"
"We'll keep it here, Sergeant. Sewell can take it back tonight after our
medical check." Hague's voice shook, and he wished savagely that he
could have had the nerve to pass that swift death sentence.
Didrickson's crime was dangerous to every member of the party, and
the Sergeant had been right to shoot. But when the time came—
when perhaps the Sergeant wasn't with him—would he, Hague, react
swiftly and coolly as an officer should, he wondered despairingly?
"All right, lads, let's pull," he said, and the tight-lipped gun crew filed
again into the hushed, somber forest corridors.
II
Night had begun to fall over the forest roof, and stole thickening
down the muddy cathedral aisles of great trees, and Hague listened
hopefully for the halt signal from the whippet tank, which should
come soon. He was worried about Bucci who was laughing and
talking volubly, and the officer decided he must have a touch of fever.
The dark, muscular gunner kept talking about his young wife in what
was almost a babble. Once he staggered and nearly fell, until Hurd
took the pneumatic gun barrel assembly and carried it on his own
shoulders. They were all listening expectantly for the tank's klaxon,
when a brassy scream ripped the evening to echoing shreds and a
flurry of shots broke out ahead.
The scream came again, metallic and shrill as a locomotive gone
amok; yells, explosive-bullet reports, and the sound of hammering
blows drifted back.
"Take over, Brian," Hague snapped. "Crosse, Hurd—let's go!"
The three men ran at a stagger through the dragging mud around a
turn in the trail, and dropped the pneumatic gun swiftly into place,
Hurd at firing position, Crosse on the charger, and Hague prone in
the slime snapping an ammunition belt into the loader.
Two emergency flares some one had thrown lit the trail ahead in a
garish photographic fantasy of bright, white light and ink-black
shadow, a scene out of Inferno. A cart lay on its side, men were
running clear, the whippet tank lay squirming on its side, and above it
towered the screaming thing. A lizard, or dinosaur, rearing up thirty
feet, scaly grey, a man clutched in its two hand-like claws, while its
armored tail smashed and smashed at the tank with pile-driver blows.
Explosive bullets cracked around the thing's chest in blue-white flares
of light, but it continued to rip at the man twisting pygmy-like in its
claws—white teeth glinting like sabers as its blindly malevolent
screams went on.
"On target," Hurd's voice came strained and low.
"Charge on," from Crosse.
"Let her go!" Hague yelled, and fed APX cartridges as the gun
coughed a burst of armor-piercing, explosive shells into the rearing
beast. Hague saw the tank turret swing up as Whittaker tried to get
his gun in action, but a slashing slap of the monster's tail spun it back
brokenly. The cluster of pneumatic shells hit then and burst within
that body, and the great grey-skinned trunk was hurled off the trail,
the head slapping against a tree trunk on the other side as the reptile
was halved.
"Good shooting, Crosse," Hague grunted. "Get back with Brian. Keep
the gun ready. That thing might have a mate." He ran toward the
main party, and into the glare of the two flares.
"Where's Devlin?"
Clark, the navigation officer, was standing with a small huddle of men
near the smashed supply cart.
"Here, Hague," he called. His eyes were sunken, his face older in the
days since Hague had last seen him. "Devlin's dead, smashed
between the cart and a tree trunk. We've lost two men, Commander
Devlin and Ellis, the soils man. He's the one it was eating." He
grimaced.
"That leaves twenty-three of us?" Hague inquired, and tried to sound
casual.
"That's right. You'll continue to cover the rear. Those horn sounds you
reported had Devlin worried about an attack from your direction. I'll
be with the tank."
Sergeant Brian was stoically heating ration stew over the cook unit
when Hague returned, while the crew sat in a close circle, alternately
eying nervously the forest at their backs, and the savory steam that
rose from Brian's mixture. There wasn't much for each of them, but it
was hot and highly nutritious, and after a cigarette and coffee they
would feel comfort for a while.
Crosse, seated on the grey metal charger tube he'd carried all day,
fingered the helmet in his lap, and looked inquiringly at the
Lieutenant.
"Well, sir, anybody hurt? Was the tank smashed?"
Hague squatted in the circle, sniffed the stew with loud enthusiasm,
and looked about the circle.
"Commander Devlin's dead, and Ellis. One supply cart smashed, but
the tank'll be all right. The lizard charged the tank. Balistierri thinks it
was the lizard's mating season, and he figured the tank was another
male and he tried to fight it. Then he stayed—to—lunch and we got
him. Lieutenant Clark is in command now."
The orange glow of Brian's cook unit painted queer shadows on the
strained faces around him, and Hague tried to brighten them up.
"Will you favor us with one of your inimitable harmonica
arrangements, Maestro Bormann?"
"I can't right now. I'm bandaging Helen's wing." He held out
something in the palm of his hand, and the heater's glow glittered on
liquid black eyes. "She's like a little bird, but without her feathers.
See?" He placed the warm lump in Hague's hand. "For wings, she's
just got skin, like a bat, except she's built like a bird."
"You ought to show this to Balistierri, and maybe he'll name this for
you too."
Bormann's homely face creased into a grin. "I did, sir. At the noon
halt when I found it. It's named after my girl. 'Bormann's Helen', only
in Latin. Helen's got a broken wing."
As they ate, they heard the horn note again. Bucci's black eyes were
feverishly bright, his skin hot and dry, and the vine scratches on his
leg badly inflamed; and when the rest began to sing he was quiet.
The reedy song of Bormann's harmonica piped down the quiet forest
passages, and echoed back from the great trees; and somewhere, as
Hague dozed off in his little tent, he heard the horn note again,
sandwiched into mouth organ melody.
Two days of slogging through the slimy green mud, and at a noon
halt Sewell brought back word to be careful, that a man had failed to
report at roll call that morning. The gun crew divided Bucci's
equipment between them, and he limped in the middle of the file on
crutches fashioned from ration cart wreckage. Crosse, who'd been
glancing off continually, like a wizened, curious rat, flung up his arm
in a silent signal to halt, and Hague moved in to investigate, the ever
present Brian moving carefully and with jungle beast's silent poise
just behind him. Crumpled like a sack of damp laundry, in the murk of
two root buttresses, lay Romano, one of the two photographers. His
Hasselblad camera lay beneath his body crushing a small plant he
must have been photographing.
From the back of Romano's neck protruded a gleaming nine-inch
arrow shaft, a lovely thing of gleaming bronze-like metal, delicately
thin of shaft and with fragile hammered bronze vanes. Brian moved
up behind Hague, bent over the body and cut the arrow free.
They examined the thing, and when Brian spoke Hague was
surprised that this time even the rock-steady Sergeant spoke in a
hushed voice, the kind boys use when they walk by a graveyard at
night and don't wish to attract unwelcome attention.
"Looks like it came from a blowgun, Lieutenant. See the plug at the
back. It must be poisoned; it's not big enough to kill him otherwise."
Hague grunted assent, and the two moved back trailward.
"Brian, take over. Crosse, come on. We'll report this to Clark.
Remember, from now on wear your body armor and go in pairs when
you leave the trail. Get Bucci's plates on to him."
Bormann and Hurd set down their loads, and were buckling the
weakly protesting Bucci into his chest and back plates, as Hague left
them.
III