Users without a subscription are not able to see the full
content. Please,
subscribe
or
login
to access all content.
Contents
- Preliminary Material
- Main Text
- 1 The Nature of ‘Agency’
- Preliminary Material
- Usage of the Term ‘Agent’
- Varieties of Agency
- Agency and European Union Law
- Seeking the Essence of Agency
- ‘Commercial Agents’ under the Commercial Agents (Council Directive) Regulations 1993
- 1.35
- 1.36
- Construction of the Regulations
- The definition of ‘commercial agent’
- The agent must be a ‘self-employed intermediary’
- The agent must be engaged in ‘the sale or purchase of goods’
- The agent must act ‘on behalf of and in the name of that principal’
- A person who buys and sells as principal is not a ‘commercial agent’
- Can agents who conclude contracts in their own names be ‘commercial agents’ within the terms of the Directive?
- ‘Commercial agents’ and the question of proof
- The agent must have ‘continuing authority to negotiate the sale or purchase of goods’
- Specific exemptions
- Persons whose activities as commercial agents are ‘secondary’
- The burden of proving whether the agent's activities are secondary
- The question, who qualifies as a ‘commercial agent’ under the Directive, is of considerable practical importance
- Contracting in
- 2 Creation of Agency
- 3 The Actual Authority of the Agent
- Preliminary Material
- 3.01
- 3.02
- 3.03
- Express Actual Authority
- 3.04
- Construing authority conferred by deed
- Construing authority not conferred by deed
- Implied Actual Authority
- 4 Apparent Authority
- Preliminary Material
- What is ‘Apparent Authority’?
- When does Apparent Authority arise?
- 4.04
- A person may allow another to appear to third parties to be his agent when in fact he is not
- A principal may allow his agent to continue to appear as his agent after the agency has terminated
- A principal may allow the impression to be given that his agent has greater authority than is in fact the case
- The Requirements of Apparent Authority
- 4.11
- Representation
- It must have been represented to third parties that the agent had authority to act on behalf of the principal
- A representation may be made by words or by conduct
- The representation may be implied by previous dealing between the parties
- The representation may be implied from the principal’s conduct
- What falls within the ‘usual authority’ of a particular species of agent is a question of fact
- The scope of an agent’s apparent authority will be a matter of proof in each individual case
- Orthodox doctrine
- Departure from orthodox doctrine
- The agent clothed with apparent authority to make representations of fact
- A representation may be fact or of law
- Reliance
- Alteration of position
- The Effects of Apparent Authority
- Apparent Authority and the Agent’s Fraudulent and Disloyal Acts
- Duration of Apparent Authority
- Authority arising out of Estoppel by Representation
- 5 Authority Deriving from Agency of Necessity
- Preliminary Material
- Agency of Necessity
- 5.01
- 5.02
- 5.03
- True cases of agency of necessity
- 5.04
- 5.05
- The criteria of an agency of necessity
- 5.06
- 5.07
- (i) The agent’s intervention must be necessary
- (ii) It is not reasonably practicable to communicate with the principal to seek instructions
- (iii) The court must be satisfied that the agent acted in the interests of the principal and in a bona fide manner
- (iv) It must be shown that the action taken by the agent was reasonable and prudent in the circumstances
- (v) The principal must have been competent at the time that the agent acted
- Does the doctrine of agency of necessity extend beyond the maritime realm?
- Matrimonial law and agency of necessity
- Necessitous interventions
- 6 Ratification
- Preliminary Material
- Ratification of Unauthorized Acts
- Who May Ratify
- Only the person in whose name and on whose behalf the ‘agent’ has purported to act may ratify
- The principal must have been in existence at the time when the agent purportedly acted on his behalf
- The principal must have been competent to perform at the time that the agent purportedly acted on his behalf
- The principal must have been capable of being ascertained at the time when the act was done
- Full Knowledge of All Material Circumstances
- What Constitutes Ratification
- Ratification may be express or implied, and may be by words or conduct
- Is acquiescence or inactivity on the part of the ‘principal’ sufficient?
- A principal may be permitted to ratify even though at first he declined to do so
- A principal may ratify through an agent
- Factors to which courts will have regard
- No Unfair Prejudice to Third Party
- Effects of Ratification
- 7 The Agent’s Liability for Breach of Warranty of Authority
- Preliminary Material
- Warranty of Authority
- When does an agent’s warranty of authority arise?
- When an action for breach of warranty of authority will lie
- Liability for breach of warranty of authority is strict
- Warranty of authority extends to all transactions
- Warranty of authority and misrepresentations of law
- Warranting the authority of another party
- Warranty not made directly to the party seeking to rely upon it
- The Legal Character of the Third Party’s Claim
- The Measure of Damages
- Exceptional Situations in which the Agent will not be held Liable
- Summary
- 8 Legal Relations Between Principal and Agent: Duties the Agent Owes to his Principal
- Preliminary Material
- 8.01
- 8.02
- The Agent’s Duty to Perform his Agency
- Contractual agencies
- An agent is under a general duty to carry out the contractual instructions of his principal
- Commercial agents operating under the Regulations must ‘act dutifully and in good faith’
- An agent must comply with his principal’s lawful instructions
- An agent is not obliged to perform an illegal or void act on behalf of the principal
- An agent must not exceed his authority
- Ambiguous instructions
- Time limit for carrying out instructions
- An agent must exercise due care and skill in the performance of the agency
- Gratuitous agencies
- Contractual agencies
- Fiduciary Duties owed by the Agent
- 8.15
- 8.16
- 8.17
- 8.18
- 8.19
- Duty not to allow his interests to conflict with those of the principal
- Duty to make full disclosure
- Duty not to take advantage of his position
- Duty not to take bribes or secret commissions
- Duty not to delegate his office; sub-agency
- An agent may only delegate his authority with the express or implied authority of the principal
- 8.51
- 8.52
- 8.53
- (i) An agent may delegate his authority if, at the time of his appointment, the principal was aware and agreed to the agent delegating his authority.
- (ii) An agent may delegate his authority if it is usual practice in the trade or profession to which the agent belongs to delegate authority, and it is neither an unreasonable practice nor inconsistent with the terms of the agent’s contract with the principal.
- (iii) An agent may delegate his authority if the nature of the agency requires that it be wholly or partly performed by a sub-agent.
- (iv) An agent may delegate his authority where it can be presumed from the circumstances of the case and from the conduct of the parties that the agent was intended to have power to delegate his authority.
- (v) An agent may delegate his authority where the act is purely ministerial and does not require particular confidence and discretion.
- (vi) An agent may delegate his authority where delegation is necessitated by unforeseen circumstances.
- (vii) Apparent authority.
- What legal relations are created between principal and sub-agent in cases where the delegation was authorized?
- A sub-agent may be liable to the principal under the law of tort
- An agent may only delegate his authority with the express or implied authority of the principal
- Duty to account
- Duties owed by Commercial Agents
- 9 Legal Relations Between Principal and Agent: Rights of the Agent against the Principal
- Preliminary Material
- 9.01
- The Agent’s Entitlement to Remuneration
- An agent’s remuneration will be governed by the express or implied terms of his contract with the principal
- If the parties’ contract has stipulated the rate of commission, the terms of the contract will govern
- If the contract is silent, a court may imply a term into an agency contract entitling the agent to earn commission
- Restitutionary claims
- Effective cause
- The agent’s right to earn commission
- Remuneration of commercial agents under the Commercial Agents Directive
- The obligation to act dutifully and in good faith
- Remuneration
- For which transactions is the commercial agent entitled to receive remuneration?
- What is meant by ‘where the transaction has been concluded as a result of his action’?
- What is meant by ‘transactions concluded during the period covered by the agency contract where he has an exclusive right to a specific geographical area or to a specific group of customers’?
- Transactions concluded after termination of agency
- Provision for apportionment of commission between new and previous commercial agents
- When the agent’s commission falls due and by what date payment must have been made
- Extinguishment of the agent’s right to commission
- Periodic supply of information as to commission due and right of inspection of principal’s books
- The Agent’s Right to an Indemnity
- 9.41
- 9.42
- 9.43
- 9.44
- Liabilities incurred by agent under trade custom recoverable from principal
- The principal’s obligation to indemnify his agent may extend beyond things for which the principal himself would be personally liable
- The principal is not bound to indemnify the agent in respect of liabilities incurred outside the scope of his authority
- Liabilities which agent has a strong moral duty to settle
- An agent may not claim an indemnity in respect of expenses and liabilities incurred through his own fault
- An agent is not entitled to an indemnity in respect of transactions which he knows, or must be taken to know, are illegal
- The Agent’s Lien
- 9.52
- 9.53
- 9.54
- General liens and particular liens
- Parties are at liberty to exclude the operation of a lien by an express term in their contract
- Acquisition of the agent’s lien
- 9.58
- An agent only enjoys a lien if he is in possession of the principal’s goods
- An agent must have acquired possession of his principal’s goods by lawful means
- The agent must have acquired possession of the goods in his capacity as agent
- The scope of the agent’s lien
- An Agent cannot create a lien beyond his own interest
- Loss of the agent’s lien
- The lien of sub-agents
- 10 Legal Relations Between Principal and Third Party
- Preliminary Material
- 10.01
- Disclosed Agency
- Rights and liabilities of disclosed principals
- Liabilities of agents and disclosed principals where the agent has undertaken personal liability
- Settlement with the agent of a disclosed principal
- Undisclosed Agency
- General principles affecting undisclosed agency
- Where the undisclosed principal may not intervene on the agent’s contract
- 10.39
- Where the express terms of the contract made between the agent and the third party exclude the intervention of the undisclosed principal
- Where, by implication, the terms of the contract between agent and third party exclude the intervention of the undisclosed principal
- Where the personality of the agent is a matter of importance to the third party
- Where the personality of the undisclosed principal is of particular importance to the third party
- Preventing the third party from suing the undisclosed principal on contracts in which the personal element forms a material ingredient
- Legal effects of undisclosed agency
- Settlement
- Undisclosed principals and deeds
- Watteau v Fenwick : cases in which an undisclosed ‘principal’ incurs liability for prohibited acts falling within his agent’s usual authority
- Unauthorized Dispositions of Property by the Agent
- 10.84
- 10.85
- 10.86
- 10.87
- 10.88
- The doctrine of apparent ownership
- Sales, pledges or other dispositions of goods by mercantile agents under the Factors Act 1889
- 10.97
- Who qualifies as a ‘mercantile agent’ under the Factors Act 1889?
- Powers of mercantile agents with respect to disposition of goods
- Owner must have confided the goods or documents to the agent in his capacity as mercantile agent
- The mercantile agent must have received the goods or documents ‘with the consent of the owner’
- The mercantile agent must have disposed of the goods ‘when acting in the ordinary business of a mercantile agent’
- When a mercantile agent’s unauthorized disposition will be treated as valid
- 11 The Tortious Liabilities of Principal and Agent
- Preliminary Material
- 11.01
- The Personal Liability of the Agent in Tort
- Common Forms of Tortious Liability affecting Agency
- The Tortious Liability of the Principal
- 12 Legal Relations Between Agent and Third Party
- Preliminary Material
- Liability of Agents to Third Parties on their Principals’ Contracts
- Contracts under which the Agent is held to have undertaken Personal Liability
- 12.05
- 12.06
- An agent who signs a contract in his own name will be considered to have contracted personally
- The agent who employs words of restriction plainly showing that he is signing the contract in a purely representative capacity will not incur personal liability
- An agent may not adduce parol evidence to contradict the terms of the written contract
- Evidence may be adduced to show that parties additional to the agent were to be liable under the contract
- Parol evidence may be adduced to show that an agent who appears not to have been a party to the contract did in fact engage his personal liability
- Contracts under which the Agent may be assumed to have undertaken Personal Liability
- Special Cases: Deeds and Negotiable Instruments
- Rights that the Agent acquires under the Principal’s Contract
- Rights of the Agent who in Reality acts for himself
- 13 Termination of Agency
- Preliminary Material
- 13.01
- 13.02
- Termination by Act of the Parties
- 13.03
- Revocable agencies
- Irrevocable agencies
- Termination by Operation of Law
- Termination under the Commercial Agents (Council Directive) Regulations 1993
- The Effects of Termination
- The effects of termination at common law
- The effects of termination under the Commercial Agents (Council Directive) Regulations 1993
- Intervention by the Court of Justice to protect commercial agents
- Choice-of-law clauses and the proper law of the commercial agency contract
- Rights conferred under regs 17 and 18 are non-derogable
- Indemnity or compensation?
- Ought English courts to interpret ‘indemnity’ and ‘compensation’ in light of their French and German precursors?
- What is meant by the concept of ‘termination’ in regs 17 and 18?
- The meaning of ‘termination’ under reg 17
- The meaning of ‘termination’ under reg 18
- Indemnity and compensation
- How is an agent’s ‘indemnity’ calculated under reg 17(3) and (4)?
- Indemnity and damages
- How is ‘compensation’ calculated under reg 17(6) and (7)?
- The need for expert valuation evidence
- The court is not obliged to accept experts’ valuation
- Placing a value on an agency where the agent has induced his clientele to defect to another supplier
- Loss of agent’s entitlement to indemnity or compensation for damage
- Loss of the commercial agent’s right to indemnity and remuneration
- 13.68
- 13.69
- (i) The entitlement to indemnity and compensation is lost if the principal has terminated the agency owing to a default attributable to the commercial agent
- (ii) Subject to two exceptions, the entitlement to indemnity or compensation is lost if the agent has himself terminated the agency contract
- (iii) The entitlement to indemnity and compensation is lost when, with the principal’s agreement, the commercial agent assigns his rights and duties under the agency contract
- Loss of the commercial agent’s right to indemnity and remuneration
- Commercial Agents and Restraint of Trade Clauses
- 1 The Nature of ‘Agency’
- Further Material
