| Table of Cases |
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xix | |
| Table of European Legislation |
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xli | |
| Table of Statutes |
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xliii | |
| Statutory Instruments |
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xlv | |
| 1 The Nature of 'Agency' |
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1 | (40) |
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Usage of the Term 'Agent' |
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The term 'agency' is frequently employed imprecisely in commerce |
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The degree of liability undertaken by the agent |
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'Mercantile agents' under the Factors Act 1889 |
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Sole agencies and contracts in restraint of trade |
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Agency and European Union Law |
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European Union law: the Customs Code |
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European Union law: the Commercial Agents (Council Directive) Regulations |
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Seeking the Essence of Agency |
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The agent creates or alters legal relations between a principal and a third party |
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A power-liability relation |
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'Commercial Agents' under the Commercial Agents (Council Directive) Regulations 1993 |
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Construction of the Regulations |
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The definition of 'commercial agent' |
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The agent must be a 'self-employed intermediary' |
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The agent must be engaged in 'the sale or purchase of goods' |
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The agent must act 'on behalf of and in the name of that principal' |
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A person who buys and sells as principal is not a 'commercial agent' |
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Can agents who conclude contracts in their own names be 'commercial agents' within the terms of the Directive? |
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'Commercial agents' and the question of proof |
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The agent must have 'continuing authority to negotiate the sale or purchase of goods' |
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Persons whose activities as commercial agents are 'secondary' |
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The burden of proving whether the agent's activities are secondary |
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The question, who qualifies as a 'commercial agent' under the Directive, is of considerable practical importance |
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| 2 Creation of Agency |
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41 | (8) |
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Contractual and Gratuitous Agencies |
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Agency invariably arises out of an agreement between principal and agent |
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There are differences between contractual and non-contractual agencies |
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Agency that arises as a Matter of Law |
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The existence of an agency is a matter of law |
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An agency agreement may be implied from the circumstances |
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Legal Capacity of the Parties |
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The principal must possess the legal capacity to perform the act that the agent performs on his behalf |
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In order to act on behalf of a principal, an agent must be of sound mind |
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Capacity, incapacity, and the burden of proof |
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An agency may normally be created without formality |
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| 3 The Actual Authority of the Agent |
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49 | (20) |
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Construing authority conferred by deed |
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Construing authority not conferred by deed |
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Actual authority implied by the parties' conduct, the circumstances of the case, or trade custom |
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Implied authority deriving from the usual incidents of the agent's professional activities |
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Implied authority deriving from customs and trade usages |
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| 4 Apparent Authority |
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69 | (36) |
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What is 'Apparent Authority'? |
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Apparent authority and actual authority distinguished |
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When does Apparent Authority arise? |
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A person may allow another to appear to third parties to be his agent when in fact he is not |
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A principal may allow his agent to continue to appear as his agent after the agency has terminated |
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A principal may allow the impression to be given that his agent has greater authority than is in fact the case |
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The Requirements of Apparent Authority |
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The Effects of Apparent Authority |
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The third party may look to the principal |
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Apparent Authority and the Agent's Fraudulent and Disloyal Acts |
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Duration of Apparent Authority |
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Authority arising out of Estoppel by Representation |
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| 5 Authority Deriving from Agency of Necessity |
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105 | (12) |
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True cases of agency of necessity |
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Necessitous interventions |
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| 6 Ratification |
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117 | (30) |
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Ratification of Unauthorized Acts |
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Only the person in whose name and on whose behalf the 'agent' has purported to act may ratify |
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The principal must have been in existence at the time when the agent purportedly acted on his behalf |
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The principal must have been competent to perform at the time that the agent purportedly acted on his behalf |
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The principal must have been capable of being ascertained at the time when the act was done |
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Full Knowledge of All Material Circumstances |
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Apparently ratificatory conduct can be vitiated by want of knowledge |
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What Constitutes Ratification |
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Ratification may be express or implied, and may be by words or conduct |
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Is acquiescence or inactivity on the part of the 'principal' sufficient? |
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A principal may be permitted to ratify even though at first he declined to do so |
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A principal may ratify through an agent |
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Factors to which courts will have regard |
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No Unfair Prejudice to Third Party |
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The supposed rule in Bolton v Lambert |
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Ratification must take place within a reasonable time |
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Agreements subject to ratification by the principal |
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Ratification after expiry of a time limit |
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Ratification cannot take place if nothing remains to be ratified |
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Ratification is tantamount to antecedent authority |
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Waiver of the principal's rights against the agent |
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| 7 The Agent's Liability for Breach of Warranty of Authority |
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147 | (18) |
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When does an agent's warranty of authority arise? |
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When an action for breach of warranty of authority will lie |
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Liability for breach of warranty of authority is strict |
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Warranty of authority extends to all transactions |
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Warranty of authority and misrepresentations of law |
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Warranting the authority of another party |
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Warranty not made directly to the party seeking to rely upon it |
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The Legal Character of the Third Party's Claim |
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The agent's liability is strict and arises out of a collateral contract |
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The extent of an agent's warranty of authority |
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What is the appropriate measure of damages for breach of warranty of authority? |
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Exceptional Situations in which the Agent will not be held Liable |
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Ratification by the principal |
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Where the party seeking to rely on the warranty knew or ought to have known of the agent's lack of authority |
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Powers of attorney executed under the Powers of Attorney Act 1971 |
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| 8 Legal Relations Between Principal and Agent: Duties the Agent Owes to his Principal |
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165 | (46) |
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The Agent's Duty to Perform his Agency |
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Fiduciary Duties owed by the Agent |
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Duty not to allow his interests to conflict with those of the principal |
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Duty to make full disclosure |
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Duty not to take advantage of his position |
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Duty not to take bribes or secret commissions |
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Duty not to delegate his office; sub-agency |
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Duties owed by Commercial Agents |
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Commercial agent's obligation to 'act dutifully and in good faith' |
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Applicable law in case of breach |
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| 9 Legal Relations Between Principal and Agent: Rights of the Agent against the Principal |
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211 | (42) |
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The Agent's Entitlement to Remuneration |
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The agent's right to earn commission |
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Remuneration of commercial agents under the Commercial Agents Directive |
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The Agent's Right to an Indemnity |
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Liabilities incurred by agent under trade custom recoverable from principal |
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The principal's obligation to indemnify his agent may extend beyond things for which the principal himself would be personally liable |
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The principal is not bound to indemnify the agent in respect of liabilities incurred outside the scope of his authority |
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Liabilities which agent has a strong moral duty to settle |
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An agent may not claim an indemnity in respect of expenses and liabilities incurred through his own fault |
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Acquisition of the agent's lien |
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| 10 Legal Relations Between Principal and Third Party |
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253 | (64) |
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Rights and liabilities of disclosed principals |
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Liabilities of agents and disclosed principals where the agent has undertaken personal liability |
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Settlement with the agent of a disclosed principal |
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General principles affecting undisclosed agency |
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Where the undisclosed principal may not intervene on the agent's contract |
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Legal effects of undisclosed agency |
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Undisclosed principals and deeds |
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Watteau v Fenwick: cases in which an undisclosed 'principal' incurs liability for prohibited acts falling within his agent's usual authority |
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Unauthorized Dispositions of Property by the Agent |
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The doctrine of apparent ownership |
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Sales, pledges or other dispositions of goods by mercantile agents under the Factors Act 1889 |
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| 11 The Tortious Liabilities of Principal and Agent |
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317 | (18) |
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The Personal Liability of the Agent in Tort |
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An agent will be personally liable for torts committed that inflict damage or loss on a third party |
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Common Forms of Tortious Liability affecting Agency |
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The Tortious Liability of the Principal |
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A principal is personally liable for torts which he has authorized his agent to commit |
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A principal is vicariously liable for torts committed by his agent in the course of employment |
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Contribution between principal and agent and indemnity between master and servant |
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| 12 Legal Relations Between Agent and Third Party |
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335 | (22) |
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Liability of Agents to Third Parties on their Principals' Contracts |
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Contracts under which the Agent is held to have undertaken Personal Liability |
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Contracts under which the Agent may be assumed to have undertaken Personal Liability |
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Agents of unnamed principals |
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Agents of foreign principals |
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Special Cases: Deeds and Negotiable Instruments |
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Rights that the Agent acquires under the Principal's Contract |
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Rights of the Agent who in Reality acts for himself |
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| 13 Termination of Agency |
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357 | (42) |
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Termination by Act of the Parties |
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Termination by Operation of Law |
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Termination under the Commercial Agents (Council Directive) Regulations 1993 |
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Minimum periods of notice |
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Circumstances permitting immediate termination of the agency agreement |
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The meaning of 'termination' under the Regulations |
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The Effects of Termination |
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The effects of termination at common law |
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The effects of termination under the Commercial Agents (Council Directive) Regulations 1993 |
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Indemnity and compensation |
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Loss of agent's entitlement to indemnity or compensation for damage |
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Commercial Agents and Restraint of Trade Clauses |
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| Index |
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399 | |
