Privity

Privity (pronounced priv-i-tee)

(1) Private or secret knowledge.

(2) Participation in the knowledge of something private or secret, especially as implying concurrence or consent.

(3) Privacy or secrecy (obsolete).

(4) In medieval theology, a divine mystery; something known only to God, or revealed only in the Holy Scriptures (obsolete).

(5) The genitals (archaic, and only in the plural).

(6) In law, a relationship between parties seen as being a result of their mutual interest or participation in a given transaction, usually in contract.

(7) The fact of being privy to something; knowledge, compliance (now rare).

1175–1225: From the Anglo-Norman priveté & privitee and the Middle English privete & private, from the Old French priveté, privité & priveté (privacy; a secret, private matter), the construct being privé (from the Late Latin privus (set apart, belonging to oneself)) + -té (from the Middle French -té, from the Old French -té, from the Latin -itātem or -tātem, accusative singular of -tās, ultimately from the primitive Indo-European -tehts; the suffix was used to form nouns, often denoting a quality or a property).  The ultimate source was the Classical Latin privātus (perfect passive participle of prīvō (I bereave, deprive; I free, release).  Privity is a noun; the noun plural is privities.

Between the twelfth & sixteenth centuries a privity was “a divine mystery; something known only to God, or revealed only in the Holy Scriptures and by the late 1200s this meaning had leaked into a general sense of “privacy; secrecy”, used between the fourteenth & seventeenth centuries to refer to “a private matter, a secret”.  The use to describe the genitals (presumably influenced in some way by “private parts” or “the private”) as “the privities” is attested from the late fourteen century and didn’t wholly fade from use until the early nineteenth although use had by then long declined to a northern English, Irish & Scottish regionalism.  The word was used from the 1520s as a technical term in the laws regulating feudal land tenure and other fields of law picked it up in the general sense of “a relationship between parties seen as being a result of their mutual interest or participation in a given transaction”; it was in contract law this would assume it’s important meaning as “privity of contract” (describing the special status of the parties to a contract (as legally defined), something which would for centuries be of critical importance and still in use today.  Less precise was the sixteenth century sense of “the fact of being privy to something; knowledge, compliance” and while there are better ways of saying it, such use is not yet extinct.

Privity of contract, Donoghue v Stevenson and the snail.

The classic case (drummed for almost a century into law students) in the demolition of the sense of the absolute in privity of contract was Donoghue v Stevenson ([1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139), finally decided before the House of Lords.  It was the case which more than any other established the foundation of the doctrine of product liability, refined the concept of negligence (transforming tort law) and remains a core part of the framework for the principles of “duty of care” which substantially it expanded.

The extraordinary case began with events which transpired in the modest settings of the Wellmeadow Café in Paisle, Scotland, Mrs Donoghue’s friend on 26 August 1928 buying her a ginger-beer, served in a bottle made from a dark, opaque glass.  After she’d consumed about half, the remainder was poured into a tumbler at which point the partially decomposed remains of a snail floated out, inducing an alleged shock and severe gastro-enteritis.  Because Mrs Stevenson was not a party to the contractual purchase of the ginger beer, she was unable to claim through breach of warranty of a contract: she was not party to any contract because, at law, she received the drink as a gift.  Accordingly, she issued proceedings against Stevenson (the manufacturer) and, after some four years in the lower courts, the matter ended up before the House of Lords, then the UK’s highest appellate court.

All were aware it was an important case.  The lower courts, bound by precedent, had been compelled to find the absence of privity of contract doomed the suit but the issue of product liability in the modern era of consumers interacting usually not directly with the producer of goods but their agents or retailers had for some time been discussed as an area of law in which reform was required.  What the Law Lords had to decide was whether the manufacturer owed Mrs Donoghue a duty of care in the absence of contractual relations contrary to established case law.  The important point was not if she was owed compensation for damages suffered but if a cause of action existed.

Previously, as a general principle, manufacturers owed no duty of care to consumers except if (1) the product was inherently dangerous and no warning of this sate was provided and (2) the manufacturer was aware that the product was dangerous because of a defect and this had been concealed from the consumer.  The Lords found for Mrs Donoghue although in a cautious judgement which could be read as offering little scope for others except the specific matter of ginger beer in opaque bottles containing the decomposed remains of a dead snail when sold to a Scottish widow.  However, the mood for reform was in the legal air and the judgment established (1) negligence is distinct and separate in tort, (2) there need not be privity of contract for a duty of care to be established and (3) manufacturers owe a duty to the consumers who they intend to use their products.

In the leading judgment, Lord Atkin (James Richard Atkin, 1867–1944; lord of appeal in ordinary 1928-1944) wrote, inter alia, what was at that time the widest definition of the “neighbour principle”: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.  Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”  On this basis, if no other, the Lords held Mrs Donoghue’s action had succeeded and she had a cause of action in law, the culmination of a growing appreciation by the courts that the law needed to evolve to reflect the patterns of modern commerce.  Some years before Donoghue v Stevenson had been decided, another judge had observed “…it would appear to be reasonable and equitable to hold that, in the circumstances and apart altogether from contract, there exists a relationship of duty as between the maker and the consumer…”

Once, if someone bought two bottles of ginger beer and gave one to a friend, were both to be injured by decomposing snails within, only the consumer who handed over the cash could have recovered damages because they alone enjoyed a privity of contract.  Since Donoghue v Stevenson, both can in court seek remedy in tort on the basis of “product liability”, a manufacturer’s duty of care held to extend to all consumers of their products.

Being the common law, what was effectively a new doctrine (and one, as the term “neighbour principle” suggests, rooted in Christian morality) it was also a general principle and thus a foundation on which the building blocks of subsequent judgments would sit; it could not be treated, in the words of Lord Reid (James Scott Cumberland Reid, 1890–1975, lord of appeal in ordinary 1948-1975): “…as if it were a statutory definition. It will require qualification in new circumstances.”  The courts in the years after 1932 had ample opportunity to refine things and this included the development of the modern tests in tort for the “foreseeability of damage” and “proximity” to which was later appended the surprisingly recent “fairness”, something which came to be regarded as within the rubric of public policy, all able to work in conjunction and as one judge noted, the distinctions between them were “…somewhat porous but they are probably none the worse for that.”  From Donoghue v Stevenson has evolved the modern notion of product liability and it would now to many seem strange there was in living memory a time when a manufacturer could escape liability for selling defective goods simply on the basis the injured party wasn’t the purchaser.  One curious quirk of Donoghue v Stevenson remains that the facts were not tested so it will never be known if the most important character in the case (the decomposing snail) ever existed.

Booby

Booby (pronounced boo-bee)

(1) A bird, a gannet of the genus Sula, having a bright bill, bright feet, or both; some are listed as threatened or endangered.

(2) A slang term for someone thought stupid or a dunce, ignorant or foolish (although still used in the mid-twentieth century, it's probably now obsolete, the meaning crowded out by intrusion of newer slang, some of which has also fallen victim to the linguistic treadmill).

(3) The losing player in a game (the historic UK usage "booby prize", now largely obsolete except in informal use).

(4) One of the many slang terms for the human female's breasts and related to the more common boob, boobs and boobie.

(5) In croquet, a ball that has not passed through the first wicket. 

1590s: From Spanish Latin from the earlier pooby, apparently a blend of (the now obsolete in this context) poop (to befool) and baby, perhaps by association with Spanish bobo (stupid person, slow bird), thought to be from an imitative root of the Latin balbus (stuttering).  Balbus was from the primitive Indo-European balb- & balbal- (tongue-tied) and was cognate with the Ancient Greek βαμβαίνω (bambaínō) & βαμβαλύζω (bambalúzō) (I chatter with the teeth), the Russian болтать (boltatʹ) (to chatter, to babble), the Lithuanian balbė́ti (to talk, to babble), the Sanskrit बल्बला (balbalā) (stammering) and the Albanian belbët (stammering).  The booby prize dates from 1883, a prize given to the loser in a game as concept which persists in some sporting competitions as "the wooden spoon", the idea being something as removed as possible from the usual silverware given as trophies.  The booby trap was first noted in 1850, originally a schoolboy prank (ie something only a "boob" would fall for); the more lethal sense developed during World War I and remain common military and para-military use.  Booby and boobyism are nouns, boobyish and (the non-standard but potentially useful)  boobyesque are adjectives; the noun plural is boobies.

Boobies: found usually in pairs

A nice pair of boobies.  Charmingly, blue-footed boobies are known to be monogamous, pairs often staying together for life.

A booby is a seabird in the genus Sula, part of the Sulidae family. Boobies are closely related to the gannets (Morus), which were formerly included in Sula, the genus created in 1760 by the French naturalist Mathurin Jacques Brisson (1723-1806).  The name is derived from súla, the Old Norse and Icelandic word for the other member of the family Sulidae, the gannet.  The English name booby was based on the Spanish bobo (stupid) as the tame birds often landed on board sailing ships, where they were easily captured and eaten.  As well as a popular addition to the diet of sailors for whom meat other than fish was a rarity, it was fortuitous for many, the Admiralty's archives revealing boobies are often mentioned as having been caught and eaten by shipwrecked sailors.  In taxonomic classification, variations include Abbott's booby (Papasula abbotti), blue-footed booby (Sula nebouxii), brown booby (Sula leucogaster), masked booby (Sula dactylatra), Nazca booby (Sula granti), Peruvian booby (Sula variegata), red-footed booby (Sula sula) & Tasman booby (Sula dactylatra tasmani).

One step at a time.

The distinctive blue feet (the result of pigments ingested from their diet of fish) also play a part in the bobby’s mating ritual although not exactly in the podophilic sense familiar in a sub-set of humans.  In the spring mating season, the bird’s feet become a bright turquoise blue and, to demonstrate their health and vitality conspicuously they will display them to potential partners.  The job done, as their eggs hatch, the blue hue fades to something less vivid.  One aspect of their behaviour which amused the ornithologists who first observed it was that if among fishers unloading their catch, it tossed a small fish from the by-catch, a booby will take it and waddled off somewhere to enjoy it in solitude rather than gulping it down as in common in many species.  Like penguins, although ungainly on land, they are skilled plunge divers which used their streamlined bodies and air sacs “fly” through the water, catching their prey at high speed and they hunt in "packs", coordinating their movement to maximize the catch.  Boobies have been recorded diving from as high as 90 m (300 feet), their speed upon entry estimated at around 100 km/h (60 mph).

Boobies in time, in step.

Based on the use by mainstream internet sites (including nominally reputable news organizations), boob (more commonly in the plural as boobs) seems to have emerged as the preferred slang for breasts, probably because it seems the term women find most acceptable and the one they most often use, not infrequently as their default descriptor.  The origin appears to lie in bubby (plural bubbies), a slang term for the female breast dating from the 1680s which is thought to be imitative of a baby's cry or the sucking sound heard during lactation.  It was most associated with south-east England although that may reflect more extensive documentation rather than proof of regionalism.  Inherently anyway a form in oral use, the alternative pronunciations included buhb-ee, boo-bee & boob-ee so the evolution to boob was perhaps not unexpected although most dictionaries list the earliest known instance as a late 1930s Americanism with the back-formed clippings boob & boobs not appearing until the early post-war years, initially as a vulgarism, women not embracing use for decades although that their approval seems to have coincided with late second-wave feminism is presumably coincidental.

Fully loaded: Lindsay Lohan in boobie-top with crash helmet in Herbie: Fully Loaded (2005).

In fashion, the boobie top (less commonly as booby-top) is a style of clothing (including dresses) which in some way draws attention to or emphasizes the breasts.  The design is most associated with generous displays of cleavage or skin but is used also to refer to garments which wholly cover the breasts in such as way as to highlight the size, shape or movement.  In the industry, a “boobie top” differs from a “boob tube” in that while the former seeks to highlight the breasts as a feature (either by using the fabric tightly to shift the focus to the size and shape or with a cut which displays the cleavage component of the décolletage) while a “boob tube” is a different interpretation of the minimalist: it completely envelopes the breasts (ie little or no visible cleavage) but otherwise exposes the torso.

A “tube top” in the original style (left) and a “boob tube” (right), both now likely to be advertised as a “boob tube”.

The style was in 1972 first described as a “tube-top” (strapless and extend from the armpits to the naval; such garments had earlier been available but the name was new) and the companion “tube skirt” appeared the next season (again, a re-labeling).  The first “boob tubes” were advertised in 1977 and the early were all a truncated version of the “tube top” in that they wrapped only around the breasts); inherently it was a midriff-baring creation and could be thought of as a kind of strapless, bandeau bra designed for outdoor wear (on warmer days).  Constructed with elasticized fabrics, they were designed to be worn without a bra but, like all forms of structural engineering, physics does limit what's possible and they came later to be available also with a “built in bra”.  Others just choose boob tubes made with a thicker material so a strapless bra unobtrusively could be worn beneath but, VBS (visible bra-straps) no longer being a sin against fashion, some now choose a to make the bra part of the look.  In truth, the terms “tube top” & “boob tube” were all a bit misleading because it was only the material covering the breasts which tended toward a truly tubular bra with the rest being more or less flat and a better description might have been “flange” but this wouldn’t have had the same appeal in a boutique so “tubes” they became.  In product descriptions, the distinction between “tube top” and “boob tube” quickly became blurred and the latter tends now often to be used of both types. 

US Army booby trap messaging, 1942.  Such infections have for centuries been a significant part of military medicine because STIs often would reduce unit strength (ie "battle-ready" troops).

During World War II (1939-1945), the US military kept up with evolution of slang, something reflected in advertising which lent a new definition to "booby trap", a familiar concept in which soldiers were well-drilled.  Despite the efforts of padres, it was rare for commanders to attempt to impose morality and when on deployment it was common for there to be "authorized" brothels (often separate facilities for officers and other ranks) with the prostitutes subject to regular inspection by medical staff and allowed to practice their ancient profession only if the supervising doctor issued a "clean" certificate.  Until well into the twentieth century (and the beginning of the antibiotic era), it wasn't unusual for the losses of combat-ready troops to illness & disease to exceed those caused by battlefield causalities and although the numbers were dwarfed by conditions such as malaria, preventing and treating sexually transmitted diseases (STDs, then called venereal disease (VD)) was an important component of military medicine.  It wasn’t until the 1970s the initialism VD began to be replaced by STD (VD thought to have to have gained too many specific associations) but fortunately for AT&T, in 1951 they renamed their STD (Subscriber Toll Dialing) service (for long-distance phone calls) to DDD (Direct Distance Dialing), apparently for no better reason than the alliterative appeal although it's possible they just wanted to avoid mentioning “toll” with all that implies.  Many countries in the English-speaking world continued to use STD for the phone calls, even after the public health specialists had re-purposed the initialization.  In clinical use, STI (Sexually Transmitted Infection) seems now the preferred term.

The other booby trap: Helpful advertising circa 1950.

In Western legal systems, two aspects of consumer protection which greatly advanced in the twentieth century were product liability and “truth in advertising”.  What the changes in product liability did was break the nexus of “privity of contract”, meaning it was no longer required that to seek redress or compensation, an injured party had to be the purchaser of the defective goods.  That reform took shape during the inter-war years but “truth in advertising”, although an old concept enforced in contract law, really became a movement in the post-war years; it was designed to remove from commerce “deceptive or misleading” claims although advertising agencies still had a wide scope to be “economical with the truth” if they could make their assertions fit into the “mere puffery” rubric.  One field never policed was women’s shapewear (corsets and such) which, with a judicious placement of struts, elasticized panels, ribs and padding could variously make body parts appear curvier, straighter, smaller, larger or higher.  The Wonderbra (and its many imitators) was probably the best known example because among the many garments and devices it was the one which most dramatically deceived and misled.  Of all this trickery the law remained silent and the sage advice remained: caveat emptor.