All students of the law of contract know, as Colman J remarked in beginning his judgment in Nisshin Shipping Co Ltd v. Cleaves & Co Ltd ,1 that in 1999, ‘‘following an admirable report by the Law Commission, Parliament dealt a long overdue body blow to the doctrine of privity of contract’’. There is then a certain irony that Nisshin , the very first case to interpret the Contracts (Rights of Third Parties) Act 1999, should turn largely on the meaning of an ‘‘obscurely worded, over-complicated’’2 provision not contained in the Law Commission’s Report but only introduced during the last stages of the Bill’s passage through Parliament. Whilst the result reached by Colman J may be regarded as unobjectionable, his judgment amply illustrates some of the conceptual difficulties and problems of construction to which the 1999 Act will give rise.

The dispute concerned an issue of much practical importance to the shipping community: may shipbrokers make a direct claim for commission payable under a charter to which they are not party? Prior to reform of the privity doctrine they of course could not. Instead, the shipowners’ promise to pay commission was usually treated as being held by the charterers on trust for the brokers, with the consequence that the charterers would need to be joined as co-claimants to any action for unpaid commission.3 It now appears from Nisshin that the 1999 Act gives brokers a direct claim against shipowners, undermining the ‘‘very cumbersome and inconvenient’’4 fiction of trusteeship.

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