5. Agency II Flashcards
Montgomerie v UK Mutual
basic rule: A usually drops out of the picture
exception: UP (direct legal relationship between A and 3P)
Cambria v Athersmith
UNNAMED/unidentified P is NOT UP (because 3P knows of P’s existence)
Armstrong v Stokes
Blackburn J: where 3P discovers UP “he is entitled to take advantage of this unexpected godsend”
- 3P CAN SUE P
Keighley v Durant
UP only applies if A acted with authority
- UP cannot ratify (too far)
- P never in relationship with 3P so 3P would get an advantage
Sin Yin Kwan v Eastern Insurance
ONE - A must act on behalf of P within scope of his actual authority
TWO - A must intend to act for P
= UP can sue or be sued
= A can sue or be sued
= 3P can use its defences against A
= P can use A’s defences against 3P
Exceptions to UP (where A acts within scope of actual authority)
a) A-X contract expressly/impliedly excludes intervention by UP
b) Personality of A is of importance to X
c) personality of UP is important to X
Sin Yin Kwan (re: personality of A)
INSURANCE CONTRACT
- usually personality of A is important in these contracts (because risk is different for each person)
- but here, A took out insurance for employees (level of risk same for whether A or UP took out insurance)
IDENTITY OF A NOT IMPORTANCE TO INSURERS so UP can intervene and so PR are entitled to claim as a result
Oyster v Randall
non-disclosure is not misrepresentation so can still be UP
- even if A knows 3P does not like P and wouldn’t enter contract if he knew
Archer v Stone
if 3P asks and A lies = can exclude UP
Said v Butt
if striking characteristic of P relevant to 3P = can exclude UP
Shogun v Hudson
Said can be better explained as tickets being personal contracts so 3P wanted to deal with A (not that 3P didn’t want to deal with P)
National Oilwell v Davy
Requirement: A must intend to act on behalf of P
Coleman J: SUBJECTIVE INTENTION
Magellan v Vitol
Requirement: A must intend to act on behalf of P
Legatt J (obiter) - OBJECTIVE intention
THIS CAN’T BE RIGHT (otherwise req.1 and 2 are the same question)
Watteau v Fenwick
undisclosed principal;
- no actual authority
- but allowed to bind P!
anomalous case
Firbank Executor’s v Humpheries
BREACH OF WARRANTY OF AUTHORITY –> A can be liable to 3P
If A makes untrue representation
that induces 3P to enter contract
A is liable to injury (even if innocent)
STRICT LIABILITY
Penn v Bristol
Whether there is breach of warranty of authority is a Q of whether there is RELIANCE on assurance made by purported agent
INNOCENT MISREPRESENTATION = NOT A DEFENCE
Foxton v Theselff
normally, A not liable (drops out of picture)
BUT A can contractually undertake to be liable to 3P even though normally A is not liable
Montgomerie v UK (undertaking liability)
A can be added as a party to the contract “if he so contracted”
Debenham’s v Perkins
If A undertook liability, 3P can choose who to sue (A OR P)
Mddle East v Abu Dhani
contract can provide for joint and several liability (if A agrees with 3P)
RESULT: 3P can sue either until liability discharged
Priestley v Fernie
if contract is silent it is alternative liability
- can only sue one or there other
- once judgement obtained (regardless of whether there is payment) can’t sue the other
Kelly v Cooper (contractual duty)
if agency arises by contract, parties have rights and duties dependent on the terms
Chaudry v Prabhaker
A has a duty to exercise reasonable care and skill (even if gratuitous and not contractual)
if A knew (or ought to know) P relied on their Skill and Judgement = liable
- here A was negligent
- P relied
- business transaction
Bristol & West v Mothew
a fiduciary:
- someone who undertakes to act for or on behalf of another in a particular matter
- in circumstances giving rise to relationship of trust and confidence
agents are fiduciaries but scope of fiduciary duties depends on nature of relationship
P is entitled to A’s “single minded loyalty”
New Zealand v Kuy
F duties include =
- duty not to take unauthorised profits
- duty not to be in conflict
these duties = “subsidiary…form of protection” to non-F duties
Kelly v Cooper (fiduciary duties)
Relationship between P&A turns only on terms of contract between them
- contract determines scope of F duties
- Agents DO NOT owe F duties for all their actions
Morrison v Thompson
A has a duty to hand over money received on behalf of P
e.g. from selling goods/profits
Paragon Finance
Obligation to give account to P = accounting duty
“Liability to account (arises) from receipt of money in circumstances which made him an accounting party”
INDEPENDENT FROM THEIR FIDUCIARY DUTY
- A’s failure to account properly is NOT a breach of F duty (unless failure to account is also an act of disloyalty)
