Jump to Content Jump to Main Navigation

You are looking at 120 of 4,777 results

Clear All

Appendix 3 »

Roger Mccormick, Chris Stears
From: Legal and Conduct Risk in the Financial Markets (3rd Edition)
Roger McCormick, Chris Stears

Appendix 5 »

Roger Mccormick, Chris Stears
From: Legal and Conduct Risk in the Financial Markets (3rd Edition)
Roger McCormick, Chris Stears

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.3 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning disclosed agency. Art 2.2.3 stipulates that where an agent acts within the scope of its authority and the third party knew or ought to have known that the agent was acting as an agent, the acts of the agent shall directly affect the legal relations between the principal and the third party and no legal relation is created between the agent and the third party. However, the acts of the agent shall affect only the relations between the agent and the third party, where the agent with the consent of the principal undertakes to become the party to the contract. This commentary discusses the requirements of disclosed agency, the consequences of disclosed agency, and burden of proof relating to the requirements of disclosed agency.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.4 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning undisclosed agency. The doctrine of the undisclosed principal allows an intermediary to bring about direct contractual relations between the principal and a third party, even though the intermediary appears to be acting in its own name alone. The doctrine offers a way in which a party wishing to buy or sell in the market can do so without appearing itself in the transaction. This doctrine was excluded altogether from the PICC, as it was seen as ‘inappropriate in the context of international contracting’. This commentary discusses the practical consequences of (attempted) undisclosed agency, enterprise liability arising from undisclosed agency, and the burden of proof relating to undisclosed agency.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.5 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning agents acting without, or exceeding their, authority. Art 2.2.5 stipulates that where an agent acts without authority or exceeds its authority, its acts do not affect the legal relations between the principal and the third party. However, where the principal causes the third party reasonably to believe that the agent has authority to act on behalf of the principal and that the agent is acting within the scope of that authority, the principal may not invoke against the third party the lack of authority of the agent. This commentary discusses apparent authority and its requirements and consequences, along with the burden of proof relating to apparent authority.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.6 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the liability of an agent acting without or exceeding its authority. Art 2.2.6 stipulates that an agent that acts without authority or exceeds its authority is, failing ratification by the principal, liable for damages that will place the third party in the same position as if the agent had acted with authority and not exceeded its authority. However, the agent is not liable if the third party knew or ought to have known that the agent had no authority or was exceeding its authority. This commentary discusses the extent of a false agent's liability, the third party's knowledge of agent's lack of authority, and the burden of proof required in this regard.

Ch.3 Validity, s.1: General provisions, Art.3.1.4 »

Jacques du Plessis
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 3.1.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the mandatory character of the provisions of Chapter 3 of the PICC on fraud, threat, gross disparity and illegality. Art 3.1.4 essentially prohibits contractual exclusion of the provisions of Chapter 3 relating to the more ‘serious’ grounds for invalidity, namely fraud, gross disparity, and illegality. It is therefore an exception to Art 1.5, which generally permits exclusion or modification by the parties. The ‘provisions’ referred to in Art 3.1.4 presumably are those relating to remedies. Art 3.1.4 only relates to excluding rights before the moment when such a right arises.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.1 »

Peter Huber
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 3.2.1 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the concept of mistake. Art 3.2.1 defines mistake as an erroneous assumption relating to facts or to law existing when the contract was concluded. Based on this general definition of the concept of mistake, Art 3.2.1 does not follow those national legal systems that try to distinguish between different types of error. Instead, it takes a very broad approach to the concept of mistake. Furthermore, even errors in expression or transmission are regarded as mistakes under the PICC. This commentary discusses the purpose of Art 3.2.1, erroneous assumption relating to facts or to law, relevant time, burden of proof, and consequences of a mistake.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.2 »

Peter Huber
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 3.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning relevant mistake. Art 3.2.2 outlines the specific requirements that must be met if a mistake is relevant under the PICC. There are three different types of requirement: the mistake must reach a certain degree of seriousness, the other party must not be worthy of protection in its reliance on the contract, and the mistaken party must be worthy of protection. This commentary discusses the purpose of Art 3.2.2, the seriousness of mistake, cases where the other party or the mistaken party is not worthy of protection, burden of proof relating to relevant mistake, and consequences of relevant mistake.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.3 »

Peter Huber
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 3.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning an error that occurs in the expression or transmission of a declaration. Art 3.2.3 serves two purposes. The first is to attribute errors in expression and transmission to the party from which the declaration emanated. This is of particular relevance for errors in transmission, as in this case a third party (the transmitter) may commit the mistake which will then, under Art 3.2.3, be attributed to the party making the declaration. The second purpose is to protect the mistaken party in those cases where, as a result of the application of the rules on contractual interpretation, the contract is concluded on terms that the mistaken party did not intend. This commentary discusses the general principles of the right to avoid the contract, specific fact patterns, and burden of proof, along with the liability of both parties for damages under Art 3.2.16.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.4 »

Peter Huber
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 3.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning remedies for non-performance. Art 3.2.4 solves the notorious conflict between the rules on mistake and the rules on non-performance in favour of the latter. It stipulates that a party is not entitled to avoid the contract on the ground of mistake if the circumstances on which that party relies afford, or could have afforded, a remedy for non-performance. This commentary discusses the requirements for exclusion of the right of avoidance for mistake, consequences of non-performance, and burden of proof relating to non-performance.

Ch.3 Validity, s.2: Grounds for avoidance, Art.3.2.5 »

Jacques du Plessis
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 3.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning fraud. In line with some major jurisdictions and international instruments, the PICC draw a distinction between fraud and mistake as grounds for avoidance. Art 3.2.5 stipulates that a party may avoid the contract when it has been led to conclude the contract by the other party's fraudulent representation, including language or practices, or fraudulent non-disclosure of circumstances which, according to reasonable commercial standards of fair dealing, the latter party should have disclosed. This commentary discusses the relationship between fraud and mistake, the requirements for fraud, the consequences of fraud, fraud involving third parties, and exclusion of liability for fraud.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.7 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning conflict of interests. Art 2.2.7 stipulates that if a contract concluded by an agent involves the agent in a conflict of interests with the principal of which the third party knew or ought to have known, the principal may avoid the contract. However, the principal may not avoid the contract if the principal had consented to, or knew or ought to have known of, the agent's involvement in the conflict of interests; or if the agent had disclosed the conflict of interests to the principal and the latter had not objected within a reasonable time. It is for the principal to show both the existence of the conflict of interests and that the third parry knew or ought to have known about it. Once the principal has discharged that burden of proof, it is then for the third party to establish that the principal consented to, knew of, or ought to have known of the conflict.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.8 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning sub-agency. In most countries, the default rule is that the agent is not permitted to delegate its authority. This rule is generally based on the confidential nature of the agency relationship. Art 2.2.8 stipulates that an agent has implied authority to appoint a sub-agent to perform acts which it is not reasonable to expect the agent to perform itself. This commentary discusses the requirements of sub-agency, the consequences of delegation of authority, cases where the sub-agent affects the legal relations of the third party, and burden of proof relating to sub-agency.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.9 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning ratification. Art 2.2.9 provides that an act by an agent that acts without authority or exceeds its authority may be ratified by the principal. On ratification the act produces the same effects as if it had initially been carried out with authority. The third party may, by notice to the principal, specify a reasonable period of time for ratification. If the principal does not ratify within that period of time it can no longer do so. This commentary discusses the prerequisites of ratification, the requirements for ratification, effects of ratification, and burden of proof relating to ratification.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.10 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.10 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning termination of an agent's authority. Art 2.2.10 stipulates that termination of authority is not effective in relation to the third party unless the third party knew or ought to have known of it. Notwithstanding the termination of its authority, an agent remains authorised to perform the acts that are necessary to prevent harm to the principal's interests. This commentary discusses the grounds for termination of authority, termination of apparent authority vs actual authority, authority of necessity, and burden of proof with respect to termination of authority.

Ch.1 General Provisions, General Provisions I: Arts 1.1–1.3—Fundamental principles, Art.1.1 »

Stefan Vogenauer
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 1.1, which deals with freedom of contract, the most important fundamental principle of contract law for contracts governed by the UNIDROIT Principles of International Commercial Contracts (PICC). Art 1.1 restates a general principle of law in the technical sense; that is, a principle common to the laws of all — or at least most — jurisdictions in the world. All modern contract laws recognize freedom of contract, albeit for different reasons and to varying degrees. Art 1.1 covers two aspects of contractual freedom: the first is the freedom to decide whether to conclude a contract at all, and with whom; the second is the freedom to contract on the terms desired by the parties. Limitations of the freedom to determine the content of the contract follow from mandatory rules of the PICC.

Ch.3 Validity, s.1: General provisions, Art.3.1.2 »

Peter Huber
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 3.1.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the validity of a mere agreement. Art 3.1.2 stipulates that a contract is concluded, modified or terminated by the simple agreement of the parties, without any further requirement. The prime purpose of Art 3.1.2 is to exclude any further requirements that the applicable domestic law might set up in that respect and to create legal certainty. This commentary discusses the impact of the doctrine of cause on the consideration and enforceability of the contract and on cases that would be dealt with under the label of immorality or illegality. It also considers the exclusion of the doctrine of real contract.

Ch.3 Validity, s.1: General provisions, Art.3.1.3 »

Peter Huber
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 3.1.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning initial impossibility. Art 3.1.3 excludes those domestic rules that invalidate a contract simply because there is initial impossibility or simply because (‘the mere fact that’) one party was not entitled to dispose of the assets concerned. As a result of Art 3.1.3, neither initial impossibility nor lack of power to dispose of the assets as such makes a contract invalid. However, this does not mean that initial impossibility or lack of power to dispose of the assets has no consequences. On the contrary, these cases are treated under the PICC's rules on non-performance or mistake. Art 3.1.3 applies irrespective of how the relevant domestic law classifies its rule that initial impossibility (or initial lack of power of disposition) leads to invalidity. It also does not cover other domestic rules on invalidity.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.2 »

Thomas Krebs
From: Commentary on the UNIDROIT Principles of International Commercial Contracts (PICC) (2nd Edition)
Edited By: Stefan Vogenauer
This commentary focuses on Article 2.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the establishment and scope of the authority of the agent. Art 2.2.2 contains two paragraphs that distinguish between the conferral or establishment of authority on the agent on the one hand, and the extent or scope of that authority on the other. While Art 2.2.2(1) provides that authority can be granted expressly or impliedly (establishment), Art 2.2.2(2) explains how the extent that authority is to be determined. Generally, it is for the person relying on an agent's authority to bear the burden of proof that it existed at the time the agent acted.