Similarly, this approach was applied to restrictive covenants, which may
also run with the land, in the following case.
Attempts to avoid privity of contract (other than
the established exceptions)
Attempting to apply land law to chattels (goods other
than land)
It can be seen from Dunlop v Selfridge that difficulties arise when a
supplier tries to control the price at which goods are subsequently resold. A
similar situation arose in the following case concerning the price of
tobacco, and the manufacturer tried to apply the rule in Tulk v Moxhay to
goods other than land (known as chattels).
138 Contract law
Smith & Snipes Hall Farm v River Douglas Catchment Board (1949)
A number of properties backed on to a river, and agreed to maintain the
river banks. This duty was passed on with the land and was enforceable
against subsequent owners who had not realised that they had this duty.Tulk v Moxhay (1848)
The garden area in the centre of Leicester Square, London, was sold by
Tulk to Elms, the contract containing a covenant not to build on the
garden, but to keep it for all time for the enjoyment of the residents in
the square. Elms sold the land and Moxhay eventually became the
owner, and although he knew of the covenant, he had the intention to
build on the land.
Tulk succeeded in obtaining an injunction to prevent this, despite not
having contracted with Moxhay. This particular case was based on the
fact that Moxhay did know of the restriction, but later cases followed,
basing their argument on the outcome of this case, even when there was
no knowledge of a restrictive covenant. This is obviously contrary to
the rule of privity, but a necessary exception to bring about a just
solution.Should one person be able to prevent another from doing whatever they
wish with land which they have bought? Why do you think that the courts
allow this?