Agency 3

Question 1

Relations between Principal, Agent and Third Parties

Answer 1

were looking at relations btw these 3 parties, web of rels that are involved

• the agent is there to bring these two into binding rels, we want to know what consequences does that have for agent in respect of principle and for agent with respect 3rd party,
• and from 3rd parties perspective does it give rights against both of them or only rights against 1 of them

Question 2

what else with intro?

Answer 2

its part of nature of agency rels that agent has fiduciary duties but might have commercial agents where governed by statue, so what statutory duties arise as well arise if ur an agent

Question 3

Relations between P and A

Answer 3

-A’s duties to P
contractual
fiduciary
statutory

-A’s rights against P

Where there are duties in law there tends to be rights aswell – DUTIES= RIGHTS

Question 4

Relations between P and T,

A and T

Answer 4

• A brings P and T into direct contractual relations- before we always assumed 3rd party new a acting for p but its more complex than that
• This doesn’t happen in every case- are rights diff if 3rd party knows im acting for p than if didn’t know
• What are the implications where P is disclosed?-aware
• What are the implications where P is undisclosed?-unaware

Question 5

Anish kapoor case?- paint

Answer 5

this artist has exclusive rights to a paint blackets black paint as artisit he is the only person who can use that black

• another artist banned him for ever acquire pinkest pink, he got the pinkest pink,
• some1 acquired on his behalf…hed be some1s principle and person who acquired= agent and 3rd party said never propsed if gonna sell it to anish undisclosed, but same time if u r 3rd party u determined never to transact with some1- would you be bound to p if didnt know existed?

if no shouldn’t be bound then how far should law interevene- commercial certainty one of virtues for commercial law

Question 6

Disclosed agency: implications

Answer 6

disclosed more simple - principal is the only person that can sue and be sued under that contract - not agent

Montgomerie v United Kingdom Mutual Steamship Association [1891] 1 QB 370

Question 7

-disclosed agency wakefield?*

Answer 7

Wakefield v Duckworth & Co [1915] 1 KB 218
W photographer, member of D&Co requested photographs for purposes of trial. W claimed cost of photos from D&Co
‘Prima facie in such a contract the plaintiff would have recourse to the principal and not the agent’

Question 8

-

Answer 8

Good illustration od this is –wakedieled- this photso meant to be used for trial in which d and co defencing client? Mr wakeffield records in books as the debt owed by d and coa nd when goes unpaid he sues and danco resists laibiltiy saying just acting on behal of principle they shouldn’t be sued- court agreed does not make them liable they were ordering photos on behald of client no themselves

Question 9

Disclosed agency: liability for A?

Answer 9

Any general rule has exceptions and 1 of them is:

• parties have expressly contracted that agent is going to be LIABLE either concurrently alongside principle
• or the agent is liable to the exclusion of the principle

Montgomerie v UK Steamship…

Question 10

-What is also another way to look at liability?

Answer 10

look at the way in which the party i.e agent has actually signed partic contract, and if there was intention should that agent should be bound or not

Internaut Shipping GmbH v Fercometal [2003] EWCA Civ 812
“Sold by Ongley & Thornton on account of owner…” Pike v Ongley & Thornton (1887) 18 QBD 708

Question 11

so two ways in which a is bound?

Answer 11

• if expressly contracted to be bound

- or bound in way which signed doc - such a way clear they’re making themselves liable under contract

Question 12

in expression of contract liability?

Answer 12

In an expression revision of contract you would have clause contract which will say contract btw p and 3rd stating rights of obl of both

-focus on signature when there is no specific clause= clear they were assuming some form of liab bc not all time parties have full contract e.g parties could just exchange letters and haven’t had contract with rights and obligations

Question 13

-Ongley case?

Answer 13

determing agent liability from series of doc/communications which was case in Sold by Ongley & Thornton on account of owner…” Pike v Ongley & Thornton (1887) 18 QBD 708 - eu agents sending invoice 3rd party sold these goods on account of order- when 3rd party persuaded them to enforce that contract q whether they had assumed direct liab to 3rd or whether clear they were acting as agents from wording of invoice that they could not be deemed to have liab to 3r, here it was evident by accounting on account of owner shows there was p behind it so did not have liab under this sale contract

Question 14

Disclosed agency: T’s enforcement rights?

Answer 14

Disclosed agency basics -Contract belongs to principal, except the agency have explciity assumed liability or they have implicity assumed liab by the way signed contact, BUT WHERE DOES IT LEAVE OUR 3RD PARTY

Question 15

Disclosed agency: T’s enforcement rights cases?

Answer 15

Debenhams Ltd v Perkins [1925] All ER Rep 234:

‘When an agent acts for a disclosed p, it may be that the agent makes himself or hersef liable as well as the principal.

Question 16

3rd parties actual enforcement?

Answer 16

-3rd party- this does not mean you can sue both you have to choose 1 but can’t get judgement on 1 and sue the other (captured doctrine)- merger and election -election says you have to elect who youre suing (who you’re enforcing your rights on) merger same effect but slightly trickier, saying when u have converted contract you have into judgment cant use same contract to get another judgement, so now contract with a forms basis of judgement im going to persue that judge to finality and dont have to use contract to persue p.

Question 17

-overall for 3rd party enforcement?

Answer 17

So if ur a 3rd party In this scenario this gives u choice of ppl tos ue but doesn’t give right to sue bith= stronger position if ur general rule doesn’t apply but nto so strong that u sue veryone involved u have to make choice of who ur going to sue

Question 18

Next step for disclosed agency?

Answer 18

• So that’s the kind of foundation of disclosed agency (expressly or implicitly make yourself liable if not 7)
• when our agent can be liable
• 3rd party enforcement rights

a can also be liable in 7 MAIN SITUATIONS so not that easy being an agent – tread careful in these areas with -so in what other sit can agent be laible where they have contracted into that liab directly?

Question 19

what is the 1st one & case?

Answer 19

1. A is the real principal - i enter contract acting like its for p but its actually me. i want 3rd party to be influenced by the poss that im acting for but it’s really me.

Rayner v Grote (1846) - rayner act as a for p to enter contract with g, by 1st delivery g knew r was p, so refused to accept remainder - r tried suing for non acceptance as g did 1st with full knowledge and facts , g was liable to accept

Question 20

What is the 2nd sit & case?

Answer 20

2. A acts on behalf of non-existent P - a can be liable by stat especc if act on p who don’t exist
   - s.51 Companies Act 2006 ‘A contract … made by or on behalf of a company at a time when the company has not been formed has effect…as one made with the person purporting to act for the company or as agent for it, and he is personally liable on the contract accordingly.’ doesn’t matter what u call urself just have to do act

Question 21

How does sit 2 help 3rd party?

Answer 21

This is way of protecting 3rd parties. It gives 3rd pary some1 to sue i.e the agent me , so the 3rd pary should not be stuck without recourse or remedy against anyone companies included

Question 22

What is sit 3 & case?

Answer 22

3. A liable by virtue of custom - disclosed p scenario It may be custom in some trade that the agent is personally liable in the contract they enter into on behalf of their principle

Pike v Ongley & Thornton (1887) 18 QBD 708-signed such a way clear they were selling on account of principal, that’s what saved them, that parttic clause in their invoice cos in particular context of that trade it was customary fro brokers acting on principals to be laiible.

Question 23

What is sit 4?

Answer 23

4. A liable by virtue of collateral contract btw them and 3rd party-
   E.g lets say our agent happens to be an auctioneer a 3rd party going to auction is going contrct with auctionee that auctioneer a is going to accept the hgiehst bd, so if im 3rd parry making highers bid = cc with this auc that theyre going to accept my highest bid, an to some extent there is a cc btw 3rd party and auc that the auc is selling something that they are entieled empowered to sell on behalf of prinole. u wouldt buy something from auc if they had no permission to sell.

that creates liab for the agent even thou theyre trying to bring about contact that theyre not involved in at all. As an agent u assume some responsible udner that cc whether u like it or not.

Question 24

what about collateral contracts in 7 sits?

Answer 24

So that basic form of cc but there is some specific type of cc which is taken as being closely associated with the closed agency scenarios and ghat the cc which is als a breach of warranty of auth- these terms used in confusing itnechangle way. No.4 dif to this 1 which is very specific form of cc .

Question 25

what is sit 5 & case?

Answer 25

5. (Collateral contract) Breach of warranty of authority, a asserted to 3rd party they have p’s auth, based on asser 3rd party entered contract and would’nt have otherwise Assertion then turns out untrue but by time 3rd discovers = loss, they don’t get recourse from p bc a didnt have auth so can’t sue a directly but bc said unture= liable for 3rd party and pay damages and compensate for loss bc ur warrant of auth turned out to be false.

-Firbank’s Executors v Humphreys (1887) LR 18 QBD 54
supports this

Question 26

Another case for cc warr?

Answer 26

Collen v Wright (1857) 8 E&B 647
W purportedly leased G’s farm to C indicate has auth to enter into agremenet on behalf of someone elses farm, C cultivated and improved the farm, G refused to sign the lease on basis that W had no authority - . He had no auth from me and I have no obligation to u

collen initially sued g and failed as a had no auth so tried to sue a- wouldnt have entered otherwise- liable based on breach of war of auth- even if a believed true still liable - couldnt sue p so sue a compensate for loss

Question 27

What is 6 sit?

Answer 27

6. A’s tortious liability:

-Tort of deceit
False representation made knowingly/without belief in its truth/ recklessly as to its truth or falsity -

-Negligent misrepresentation
negligent misstatement
negligent misrepresentation (Misrepresentation Act 1967)

-Conversion
A deals with goods in a manner that is inconsistent with T’s possession - lets say u dealt with good in manner that inconsistent with 3rd parties posse e.g u either tendered 3rd parties goods to wrong person or refused to tender goods that point mean to u could be reliable according to tort of conver

-Defamation
agents of an author/editor/publisher in same position as principal-also liable for defam-if ur agen to p and repeat or pass on any defam statement cocnering 3rd party- wouldn’t priotise thes in exam

wouldn’t prioritise these in exam

Question 28

what is 7 sit?

Answer 28

7. 7. Unnamed principal

A purportedly enters into contract on behalf of P, discloses that he is agent but does not name P to 3rd party: still knows but didnt mention name - you are liable as a -GENRAL RULE- 3rd party presumed tro agree to contrct with unidentified principal as long as agent liable and agent also agreeing to liable as not saying who acting for

Benton v Campbell, Parker & Co Ltd [1925] All ER Rep 187
presumption regarding T’s consent and A’s agreement-3rd person would only agree to contract with unkown p if 3rd party knew making my sel fliabl as agent and is this scenario agnt agreed to make liab by mnot identifying principle= eprosnal liability too =

Fleet v Murton (1871) L.R. 7 Q.B. 126
custom where broker does not disclose P’s name on the contract

undisclosed is when don’t know at al

Question 29

-Disclosed agency: P’s liability for A’s torts?

Answer 29

if agent comits any torts are there any cirum in which principal answerable to 3rd pary for those torts

Question 30

Ps liability for a’s tort case?

Answer 30

Cornfoot v Fowke (1840) 9 LJ Ex 297
F sought A’s help in finding a house, asked if there was ‘anything objectionable about it’. Following entry into agreement, found adjoining brothel. - could p be liable for a’s misrep

held yes: either u as p told agent not to reveal this or whether didn’t give agent enough info– innocent misrep u as p reliab for agent

agent in position fraud 3rd party therefor u as principle= laible = MORE FRAUD/DISHONESTY SPECTRUM also torts and neg

Question 31

-what happened in monaghan v taylor?

Answer 31

Monaghan v Taylor (1886) 2 TLR 685
T owned music hall, engaged singer who sang song infringing M’s copyright.
T denied authorizing singer to sing the song.

Tylor was liable to m for breaches of copyright

Question 32

Undisclosed agency: implications?

Answer 32

NOW UNDISCLOSED. In reality u are agent but end up principal.

Oystertec plc v Barker[2002] All ER (D) 192 -supports this

undisclosed p can sue and be sued on a contract made in name of another person with his auth is contract in truth although not in form og undisclosed p himself- Keighley, Maxsted & Co v Durant [1900-03] All ER Rep 40-U the agent are clothed with the appearance of a principal

Question 33

-on the other hand of undisclosed agency?

Answer 33

.On the other hand legally the real p has some rights under that partic contract. As genuine principle he still has rights to be sued and be sued. undiclsoed doesn’t undermine their rights at all

Question 34

Undisclosed agency cases?

Answer 34

Coates v Lewes (1808) 1 Camp 444

C employed A to sell linseed oil on C’s behalf.
A sold in own name to L, and L paid A.
C sought to recover purchase price from L.
- purchase price werent passed on held - even though p was entitled to sue 3rdat point where our 3r party had paid agent, they had effective discharded their respons , so if undisclosed pricniapla nd ur 3rd pary nd u make payment toa gent u ahev dischred respon udner contract no one lse can come after u after that purchase price, cos believed a was p

Dyster v Randall & Sons [1926] Ch. 932
D sought to buy land from R&S through C, knowing that they would not sell to him.- sim to pinkest pink- refused to comlete agreement when knew who but court held that mere factwould never sold duyster coudlnt refuse if knew he was the real principal clos relasitell theyed be nothing to prevent that agent to buy land fro them an repurchase.

Question 35

Undisclosed agency: critique?

Answer 35

‘This doctrine is anomalous because it gives the undisclosed principal rights, and subjects him to liabilities, that arise under a contract to which he was not originally privy.’ -Sealy & Hooley (2008)

-‘the whole law as to the rights and liabilities of an undisclosed principal is inconsistent with the elementary doctrines of the law of contract. The right of one person to sue another on a contract not really made with the person suing is unknown to every other legal system except that of England and America. It rests originally on a sort of common law equity, and originates in the feeling that a principal who had got the advantage of a purchase ought to pay for it if the agent to whom the seller really trusted was not able to do so.’ Pollock (1887)

=-‘…while the development of this branch of law may have been anomalous… it is justified on grounds of commercial convenience’ Siu Yin Kwan v Eastern Assurance Co Ltd [1994] 2 AC 199

Question 36

What is critique trying to suggest?

Answer 36

Tryign to say where in scenario didnt do anything about d he still has rights and liab- it deosnt fit very neatly with toehr., how does contract btw these 2 actually become contract that belongs t this party. So commentary o this

• sealy and hooley – this docton is odd doctrine in contract law terms. Doctrine that tends to be better no in common law doc England and America, less so I ncivil law sysyems.
• france this whole concept of undisclosed principal rights would be alien in some legal system so aits odd doc b its very limited in terms of usage, its confined to american English law see hillock actually tries to rationalise, says route of doc must be on equity, reason say if this principle benefited from this contract beginef agent and 3rd this principal should have some liab to pay for it , so hat f agent idnr habl to fulfil our 3rd party also has oem 1 to go for. ?

Siu khan case- statement read as written –wheres the convenience?- certainty –recourse and trying to makr contract workable which should be be in contract terms so trying to find way around conve standards contrac pricnpal order to say cotradt workable –gives principal rights against 3rd nd vice versa

Question 37

Undisclosed agency: non-application?

Answer 37

‘The terms of the contract may, expressly or by implication, exclude the principal’s right to sue, and his liability to be sued. The contract itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal.’ Siu Yin Kwan v Eastern Insurance Co Ltd [1994 ] 2 AC 199

u can remove principal rights to sue or be sed – 3rd party has to focus on agent only .

Question 38

what was said in said v butt?

Answer 38

Said v Butt [1920] 3 KB 497
S wanted to attend 1st night theatre performance.
S asked P to purchase one for him. On arrival, B refused S admission.

said asked friend purchased his ticket - mr butt refuses entry- said sued for breach of contract he was undiclosed p- can 3rd party sue- court said theatre won bc of circumstance- general rule- sale of land much more impersonal but where where u have sale for launch stronger pos than land- good first impressions - if impersonal less ways to deal with undisclosed

undisclosed will not apply where the agent actually lies aswell that ntoa cting for principal when really is

Question 39

what happened in archer?*

Answer 39

-archer v stone – say im agent set contrct 3rd party -3rd party are u acting for anone and say no this means there are no undisclosed agency that p can claim. Then clear to every1 that there ar eno rights anresponsilitye tta he has sasusment. So im the true principal only btw me agent and 3rd party

Question 40

Undisclosed agency: enforcement?

Answer 40

• ‘where a contract … is made with an agent, in his own name, for an undisclosed principal, either the agent or the principal may sue upon it’ Sims v Bond (1833) B & Ad 389
• A loses right of action against T if undisclosed principal intervenes Atkinson v Cotesworth (1825) 3 B & C 647
• Undisclosed principal is subject to any defences which T may have against A
• T entitled to sue A and undisclosed principal (after intervention)
• A liable until T makes election
• ‘This unusual doctrine makes a third party liable to a person whose connection with the transaction was unknown to him, though it also allows him to sue that person.’ Burrows

Question 41

what is meant by enforcement?

Answer 41

can both sue but if any point undisclosed intervens makes self known means agent can no longer sue 3rd arty. Agent has to fall out . What if both in position to sue 3rd prty but agent has certain fences to raise against u e.g arising from contract

e. g duress- does that effect principal -yes it does that undiclsoed p,affect by any defences that 3rd party can raise by agent.
- Works other way 3rd aprty u can sue 1 agent or principle so same sort of princap had with disclosed as iocne u know ur in psoiton to sue anyone of them.

When u 3rd party chosn to sue principal means agent no longer liable, so once made election the toehr aprty has to fall out of pic, s even doc protect principal give right it also proctects 3rd party right it gives thirs party right agent and prcnoal

Question 42

Undisclosed agency: ratification?

Answer 42

Keep in mind aswell if u are a principal in undisclosed agency scenario u can not ratify contracts. So if ur undisloced p ur agent has entere into contract 3rd ary without prin u cannot rectify contrct

Question 43

example of ratification?

Answer 43

Keighley, Maxsted & Co v Durant [1901] AC 240. P instructs A to buy corn at a certain price. A buys at a higher price in own name, does not disclose that acting for P. P refuses to accept delivery.

-‘The question of law is whether a contract made by a man purporting and professing to act on his own behalf alone, and not on behalf of a principal, but having an undisclosed intention to give the benefit of the contract to a third party, can be ratified by that third party so as to render him able to sue or liable to be sued on the contract.’

Question 44

-kailey case in my words?

Answer 44

-Keighley- talked about this when talked ageny rect- here u have p – bought higher but not actin my c undisloced – u appear to be true principle then ultimate when corn delivered p don’t want to accept- read aswritne- even if as principle wanted to rec cant bc undislcoes, so even if p willing to accpet higher price the been prevented from rec cos at time corn was brought agent didn’t disclose acting for some1 so rpincipe is bound by contract that agent acing within there auth , if undi ag u cant suvb approve unauth acts of agent??important limitation onconcept on disclosed agency

Question 45

-Ractification in short?

Answer 45

SO IF U HAV AGENT U SUPPOSDLY ACTIN ON OWN BEHALF BUT ACTUALL INTENDS TO LET PRICNIAPL BENEFIT FROM COTNRACT CAN THAT P RECTIF CONTRRCT AND BECOME LIAB TO SUE AND BE SUED
NO CANT TELLS US THAT RE HAS TO BE KEPT NARROW LIMTS, yes ther is such thing as agency by rect but its very narrowly applied/

Question 46

Summary – Relations between P, A and T

Answer 46

A exercises authority to bring P and T into binding legal relations
Understanding the parties’ rights and obligations
where T is aware of the existence of a P
where A acts for a P whose existence is hidden from T

Understanding in what situations A and T can incur direct liability to each other

‘Complications which can arise to prevent a contractual relationship being created’ between P and T (Baskind)

Question 47

ending?

Answer 47

This where we are now last week tslke about auth be alla d end all bidn g
But se here even where agent has excercised autht ehres till room for that partic contract to be els binding or more depending whether ur dealing with closed or disclosed
So how does it affect the agents right prinipals rightrs nad 3rd parties if 3rd party is p or not. Improtnatly if ur agent u want to know when u can be directly liably for 3rd aprt u think ur actin to someon1 but what extent ur u exposing urself to 3rd party
And if ur pricnipe,huw ant tokknow what can happen to prevent ur vindinf rels with 3rd party from actually coming about whatc an itnerfer with the creation fot hat binding rels.