Principles of the Law of Agency

Principles of the Law of Agency

by Howard Bennett


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Principles of the Law of Agency by Howard Bennett

Agency is a pervasive institution, fundamental to commercial activity, inherent to legal personality, and enabling against deteriorating capacity. This book provides a fresh, succinct examination of the principles of agency law, exploring the rules of attribution, the rights and obligations arising within the agency relationship, the impact of agency in the fields of contract and tort, and the termination of an agent's authority. Throughout, full consideration is given to the issues arising under the EU's Commercial Agents (Council Directive) Regulations 1993. The discussion is informed not only by common law authority that constantly nourishes the development of agency law principle, but also by international soft law instruments and the Restatement of the Law, Third: Agency.

Product Details

ISBN-13: 9781841138855
Publisher: Hart Publishing
Publication date: 10/21/2013
Pages: 240
Product dimensions: 6.10(w) x 9.10(h) x 0.60(d)

Table of Contents

Preface v

Table of Cases xiii

Tables of Legislation xxxv

1 Agency: A Flexible Institution 1

Introduction 1

Definition; a Variable Nexus of Relationships 2

Disclosed and Undisclosed Agency 3

Authority, Consent, and Power: Principles of Attribution 4

Agency and Contract 6

Attribution and Legal Personality 7

Attribution and Context 8

Remuneration 10

Intermediaries as Agents or Principals: Optional Relationship Structures 11

Simultaneously Agent and Principal 14

2 Commercial Agency 15

Commercial Background 15

The European Directive 16

The Commercial Agents (Council Directive) Regulations 1993 19

The Definition of 'Commercial Agent' 20

The Basic Definition 20

'Self-employed' 20

'Continuing Authority' 22

'Sale or Purchase of Goods' 23

'Negotiate' or 'Negotiate and Conclude' 26 'On Behalf of Another Person ("The Principal"), or… on Behalf of and in the Name of that Principal' 27

No Further Requirement Imposed or Permitted 28

Agents Specifically Excluded from Commercial Agency 29

Sub-agents 29

Secondary Activities 30

'Secondary': The Essential Enquiry 30

Indicators of a Paragraph 2 Purpose 35

Commercial Agents Presumed to Act as such in a Secondary Capacity 36

Burden of Proof 36

Territorial Applicability 36

The General Rule 37

The Exceptions 37

Commercial Agency in Great Britain but Choice of Law of Another Member State 37

Commercial Agency Outside Great Britain but Choice of English Law 38

3 Actual Authority 39

Scope of Actual Authority 39

Necessity 42

Delegation 44

Whether Delegation Authorised 44

Consequences of Authorised Delegation 45

Formalities 49

4 Apparent Authority 50

Juridical Nature of Apparent Authority 50

Apparent Authority Within the External Aspect of Agency 52

The Basic Requirements for Apparent Authority 52

A Representation of Authority 53

Reliance 54

Fraud and Forgeries 57

Representation by or on Behalf of the Principal 57

Undisclosed Principals 64

5 Ratification 67

The Nature of Ratification 67

Ratifiable Acts 68

Ascertainability of the Principal 70

Competence of the Principal 72

Existence of the Principal 72

Knowledge of the Principal 73

How Ratification is Effected 75

The Retrospectivity of Ratification 76

Principal and Third Party 77

Principal and Agent 77

Unfair Prejudice 79

Loss of the Right to Ratify 84

6 Agents' Obligations 85

Performance Obligations 85

Fiduciary Obligations 89

The Content of Agents' Fiduciary Obligations 90

Monitoring and Challenging an Agent's Conduct 96

Remedies Arising out of Breach of Fiduciary Obligation 97

Remedies in Respect of the Agency Relationship 97

Remedies in Respect of a Transaction Induced in Breach of Fiduciary Duty 98

Consequential Financial Remedies against the Agent 99

Account of Profits 100

Money Had and Received 101

Equitable Allowance 101

Equitable Compensation 102

No Double Recovery 103

Sale by Agent to Principal 103

Proprietary Remedies 104

Third Party Accessory Liability for Breach of Fiduciary Duty 109

Accessory Liability at Common Law in Tort 109

Accessory Liability in Equity for Assistance 110

Third Party Liability for Receipt 111

7 Mutual Obligations in Commercial Agency 113

The Import of the Obligations 113

Remedies for Breach 116

8 An Agent's Financial Rights Against the Principal 117

Remuneration: Entitlement and Discretion 117

Earning Remuneration 118

Entitlement to Earn Commission 123

Exclusivity Clauses 123

Implied Terms not to Inhibit the Earning of Remuneration 124

Commercial Agency 126

Remuneration by Commission 127

Entitlement to Commission (1): Transactions Concluded during the Agency 127

Entitlement to Commission (2): Transactions Concluded after the Agency 129

Causation and Timing 129

Pre-termination Orders 131

When Commission Due and Payable 131

Loss of the Right to Commission 131

Whether Non-Derogable 132

Indemnity 133

Agent's Lien 133

9 Agency and Contract 136

Disclosed and Undisclosed Agency 136

Undisclosed Agency, the Doctrine of the Undisclosed Principal, and Commission Agency 137

Disclosed Agency 138

Contract Between Principal and Third Party; Agent No Standing 138

Contract Attracting Personal Engagement of the Agent 139

Unidentified Principals 141

The Doctrine of the Undisclosed Principal 143

Origins, Justification, and Theoretical Analysis 143

Exclusion of Undisclosed Agency 145

Insurance Contracts and Undisclosed Agency 147

Protection of the Third Party 149

Discharge of Payment Obligations 151

Alternative Liability 153

An Agent's Warranty of Authority 154

10 Agency and Tort 158

An Agent's Liability in Tort 158

A Principal's Personal Liability in Tort 159

Liability of a Principal for the Torts of an Agent 161

Vicarious Liability 161

Vicarious Liability for Torts of Misstatement 164

Independent Contractors 165

Non-Delegable Obligations 166

'Representative Agency' 166

Primary vs Vicarious Liability 168

11 Termination of Authority 169

Termination of Actual Authority 169

Termination in Accordance with the Agency Agreement 169

Discharge of Agency Contract 172

Revocation and Renunciation of Authority 173

Termination by Operation of Law 174

Lasting Powers of Attorney 174

Irrevocable Authority

Termination of Apparent Authority 177

Financial Reparation on Termination of Authority (1): at Common Law 178

Financial Reparation on Termination of Authority (2): Under the Commercial Agents Regulations 179

Commercial Agents' Entitlement to Compensation or Indemnity 179

'Termination of the Agency Contract' 180

Indemnity 181

Compensation 182

When no Entitlement to Compensation or Indemnity 185

Agent Default 185

Agent Termination 186

Agent Assignment 187

Index 189

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