Agency 4 Flashcards
Introduction- what is lecture 4 about?
- A’s duties to P-what duties does our a have to p, how does it operate also what rights do a have against p, if there is a duty, there is a right. its easier to think of the a having duties and ob to principle bc a acting for p
- contractual (general)- what are the duties broken down - contractual duties (formed by contract) consent is also enough , contract= assump that some of those duties given by p to a will be in contract. dependant on contract for duties bc of this =speculative
- fiduciary - fid used alot in other rels aswell can apply to fid rels and other rels this case.
‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.’ Bristol & West Bldg Soc. v Mothew [1998] Ch. 1
-statutory
company directors ss. 171-177 Companies Act 2006
Commercial Agents Regulations 1993–staut- company direct- type of agent- where would we find their duties, what duties to they have to company by virtue of their agency pos- governed by common but now companies act 2006- ull find them there
For commercial agents- these one extensively govenerned by leg for commercial agents to what extent can we trace what their duties are according to leg aswell.
P’s duties to A- they also have rights to a
Agents’ general duties?
if ur an agent u have duty to perform contractual obligations, any obligations u have in contract u have duty to perform them. If u don’t ur p has claim against u in damages called BREACH OF CONTRACT.
Agents’ general duties together? (7)
1.Duty to perform contractual undertakings
Fraser v BN Furman (Productions) Ltd [1967] 3 All ER 57- strict duty to perform those or else they are liable to p in damages
2.Duty to obey instructions
Turpin v Bilton (1843) 5 Man & G 455- -doesn’t have contractual ob but they’ve been given speicif instructions by p and haven’t.liable in damages for loss p has sustained
ambiguous instructions Ireland v Livingston- there can be a danger that those instructions are ambig- so from agents perspec those instructions may not be clear what would they do- there can be a danger that those instructions are ambig- so from agents perspec those instructions may not be clear what would they do
- Duty to act with reasonable care and skill
- Contractual agencies
- Supply of Goods and Services Act, 1982, s.13
- Tort
- Gratuitous agents Chaudhry v Prabhakar ‘Where the agent is unpaid, any duty of care arises in tort.…’
Fraser v BN Furman (Productions) Ltd [1967] 3 All ER 57?
- ms fraser was employee of burn productions and she was injured at work and claimed damages-
- production sued insurance broker cos they were meant to obtain insurance enable them to pay ms fraser but by virtue of insurance brokers didnt secure insurance when should= uninsured when it was obliged to meet ms frasers claim.
Sued for breach of duty- held that : as much as obliged to compensate ms fraser, the insurance agent was also obliged to pay damages for breach of contract.
so clearly this relates to scenarios where there is a contract setting out the obligations of the parties especially agents obli,
Turnip v bilton & ireland?
agent has been instructed to insure a ship, they don’t and ship is lost at sea which meant that p left out of pocket and a is sued for breach of their duty to obey instructions=liable in damages for loss p has sustained for not being insured at relevant time.
– there can be a danger that those instructions are ambig- so from agents perspec those instructions may not be clear what would they do-
Ireland case- here have p who said to a pls secure 600 tons of sugar and ship 600 to me and I will pay u 4 tht, a secured 400 and se t p and p rejects delivery says inadequate not what instructed
but wasn’t evident that should have sent tons in 1 go , so the agents understanding said as much to start and so if ambig what does agent do – in this case – if 2 interp and a in good faith reasonably adopts 1 interp its not open to p to repudiate that contract. So ur the agent u have been given instructions opened to 2 interp- not open to p to deny ur auth cos didn’t adopt other interp.
Duty to act reasonable care and skill & tort & gratious agent?
contractual age- can be expressed or implied term of that contract
-some circumstances this duty can be implied by stat e.g supply goods and services act. – So in s.13 it says that were u have some1 who is applying good and service sin course of business there’s an implied term that they will act in reasonable care and skill.
Talked about gratuitous agent – clearly wont be contractual duty, so if gratuitous a -ur doing something for some 1 with no reward-still have duty to act with reasonable care and skill and if u do not person cannot sue in contract but can sue in tort for breach of duty of care.
Agents’ general duties-Duty not to delegate?
Many of those duties just looked at, duty not to delegate= negative duty , not positive to do something but it’s a restriction, and this duty not to delegate stems from latin expre- a delegate
-cannot delegate, so if I can delegated to u u cannot delegate to someone else
delegatus non potest delegare
De Bussche v Alt [1874-80] All ER Rep 1247:
De Bussche v Alt [1874-80] All ER Rep 1247 duty not to delegate case?
if u have appointed some1 to be ur agent u are effectively expressing ur confidence in that person , so that confidence is at root of ur agency rels with some1 u do not expect person to delegate tasks or role to some 1 else.
When do courts accept delegation?
Corts do accept in course of business needs.
imperatives can dictate that sometimes the a will not be the person who needs to carry out particular task that sometimes those tasks, p instructions will need to be carried out by somebody other than the agent, so this is not an absolute rule.
This means u may have contracts or agreements btw p and a where delegation is expressly auth , ur parties have agency c ntract then its poss in agency c that the p to indicate to indicate to what extent agent allowed to delegate duties. So that may be
what are the 3 types of delegation?
Delegation expressly authorised
Delegation impliedly authorised
Performance of ministerial acts: -which mean a entitled to delegate to another party to act on p task bc its not a task that involve ps confidence.
what is meant by delegation expressed/implied?
expressly auth in contract
impliedly auth - from circumstances/conduct from parties that the p accepted that the agent would need to delegate partic tasks.
what is Performance of ministerial acts?
the law makes distinction btw the a ability to delegate task which involve p confidence, so the tasks or functions where the principal has placed partic trust in that agent will normally be the tasks that fall within that maxim. But occasionally there may be other acts which the law regards as purely ministerial. Ceremonial, admistrivate largely trivial etc, where the a is not expected to act for p itself. The a is allowed to delegate task or farmet out effectively. So if something falls within that cet of minis act that a is entitled to delegate it
allam case in support of ministerial acts principle?
Allam & Co Ltd v Europa Poster Services Ltd [1968] 1 All ER 826:
distinction between A’s personal performance of functions involving P’s confidence, and employment of another person to carry out some purely ministerial act on his behalf in completing the transaction
allam case in depth?*
two aprties are adverting contrctors, completion with each other and end up with same p, so allam is agent of Europa (p) and ultimately allam eupopa contract for p which means can knock alam out of picture. Pricniple permission is to send notices of termination to allam, but it doesn’t said as much as terminaito itself it asks its solciitors to send those notices of termination, zo rather than sending directly termianitng, if u were solicitors to terminate servies, and question was wether the p having delegated that t task to Europa is to delegate to solicitors. If couldn’t delegate to soli, then that meant termination notice invalid as didn’t come from Europa, or could this be treated as a minsietal act by Europa ehich entitled to delagtae to solcitiors, so this is where disitnc doubt with in this case- court= minsiteral act, Europa was entitled to appint soli to send notes of termination and not invalid on basis didn’t come from europ directly. So it is much as a u are ntoe ntiled to delegate theyre are certainc ircum ehere not expected to do ervything ur self. Those are gernreal duties ofagent.
Fiduciary duties of agents
the high standard of conduct required from him springs from the fiduciary relationship between his employers and himself.’ Armstrong v Jackson [1916-17] All ER Rep 1117
‘The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations.’ Bristol & West Bldg Soc. v Mothew [1998] Ch. 1
what are fid duties?
duties that are not going to stem from contract, but stem from equity,
not so much to say that a has to perform duties in particular way but that a conduct has to be held to a partic standard,if fid the high expectations of way which conduct urself with respect to other party, so its effectively a yardstick/measure that u going to hold for particular a actions. loyalty to ur principal, so
what is your primary duty in fid duties?
ur primary duty is 1 loyal to p and ur p is entitled to ur single minded loyalty, from that loyalty duty. there are various things that follow from that,
- meant to act In good faith- ur meant to put p interests in making profit before u,
- also must not make profit out for ur own positon, ur not in it for what u get for self,
- ur meant to avoid conflicts of interest so their maybe a conflict btw ur own personal nterest as agent and duty to p and you have tvoid those conflicting interests and even apart from making a profit and apart from conflcits of interest,
Another sit for fid duties?
- there may be situations where its possible to act for ur own benefit and 3rd parties benefit, and ur not aloud to do that without ur p’s informed consent, so u cant actually own benefit as agent or third parties benefit without p’s own consent cant do it behind back- S
there may be circumstance which a hasn’t done any of these things but theyre still in breach duty of loyalty to the p.
what if a hasn’t done any of these things?
there may be circumstance which a hasn’t done any of these things but theyre still in breach duty of loyalty to the p.
when can a breach of fid duty arise?
football a be treated as agents in def, , we have this case which does involve a football age sit.
- mr jack was international football player and wanted to play for club in uk so he approached imageview and were interest have jack. So after neg by his ag he finaly secures contract and sometime in contract he discoveres image view had sep arrangement with …united where going to pay a 300 pounds to get mr jack’s permitvldsvmskvm.
- O mr jack considered to be breach of fid duties owed to him by his a and he stopped paying them any permission at all.
-Put itnerestes before me but u did side deal for urselves instead of ml, breached no profit rule nd industry said it was really none of his business didn’t concern sep arrangemnts
Imageview Management Ltd v Jack [2009] EWCA Civ 63
‘The law imposes on agents high standards. Footballers’ agents are not exempt from these. An agent’s own personal interests come entirely second to the interest of his client. If you undertake to act for a man you must act 100%, body and soul, for him. You must act as if you were him. You must not allow your own interest to get in the way without telling him.’
overall for image view case?
tmr jack was entitled to reclaim all the commission he paid to imageview up till that date. Imageview for fitted that commission cos breach of fid duty acted own account they’d obliged to account to mr jack as the p for that 3000 pounds they had received from united. They lost their commission and had to restore jack. Serious breach. can’t act for two p’s with conflicting interests.
its possible that both p can agree u acting for them even thou conflicting interest. A acting for both. But if agreed they agreed on fre informed basis with ful knowledge of circumstance
when can you act for two p’s?
its possible that both p can agree u acting for them even thou conflicting interest. A acting for both. But if agreed they agreed on fre informed basis with ful knowledge of circumstance
e.g of where you can act for two p’s?
General agency, way of companies that outsource their appear functions to partic agency, u can asumme that these p’s appreciate that the agents gonna be working for them.
Sort sit of p even though acting for vaious ppl have contractual oblig to u
E.g real estate a – ur p surely appreciate ur gonna act for various, selling hosues ame steet for diff pr , realsiitically non eof em aspects u to be devoted for their interests they appreciate their will be other people
what we saing with agents conducts have to measured?
when u say agents conducts has to be measured against this parituc standard we effectively sayin agent should avoid conflcits of inflicts,shoudlnt make profit, shoudltn accept bribes and should account to p.
case for avoiding conflicts?
Avoid conflicts of interest Armstrong v Jackson [1916-17] All ER Rep 1117
‘An undisclosed but realistic possibility of a conflict of interest is a breach of your duty of good faith to your client.’ Imageview Ltd v Jack
image view and avoiding conflicts?
we saw in iamgveiew how that coulda rise, and 1 thing courts said in that even if u just have a reaisti- read as written – and don’t disclose to p that is breach of duty to client –
Armstrong – 1 better knwn cases, here mr Armstrong didn’t know good deal about stock market asked the stock broker Jackson to buy shares for him, and Jackson effectively source these chairs for him and invoiced mr Armstrong asif bought good shares, also transpired that tese shares ahd actualy beloegned to ajckson and al he ahd done was to sell mr armstron shares that he had already owend without makeinf ull fiscloseure. So in those circum clearly he had condflict of interest, bc in his positon as seller of shares we want to make best price possib but same time as mr arms a he would want the most competitive price for the shares as poss, so mr Armstrong was able to sue mr Jackson inorder to set aside that partic sale and able to recover his money
case for no profit?
No profit Regal Hastings v Gulliver [1942] 1 All ER 378
well known as done with company directors making a prof, and the directos were directos of regal ahsting lmtd and this company owned cinema and wanted to sell cinema, and though could ell group fo cinema than 1, so to buy additional cinemas the companya cocunted the hurdle didn’t nave enough money to purchase more, drectors came up with idea set up subsidiary company inject some own personal money into smaller company, use tha smaller company to buya diditoanl cinema and then sell 2 companies toether, so regal 1 cinema, new company 2 and sell them all as a package the directos actualy make good amount of money out of this transaction. But the new owners of the company having discovered this partic circumstances goes to dir to account for that profit this profit u made in as directords an a of company and ur obliged to account for it bc as agents should not make profit , duties to p. court agreed with them thata s direcotrs they were obliged to account to profit made froms ale of shares in smaller company event ho something done in good faith. So theyev made profit of a even if good faith still obliged to account for it.
What is meant by not accept bribes?
Not accept bribes Industries & General Mortgage Co v Lewis [1949] 2 All ER 573
‘…a bribe means the payment of a secret commission’
‘proof of corruptness or corrupt motive is unnecessary’
not accept bribes in depth?
3rd one comes across old fashioned- not accept bribes an I think in this day and age when people have very clear understanding based on anti corruption laws, breaking laws of what cosntitues a bribr, bribe= crime this acutually can be misleading o this term is quite dated, espeiclaly in agency context, if saying agency shouldn’t accept bribes we don’t eman the criminal corrupt type of bribes, theyre simply referring to secrest payments secret permissions from 3rd party, so in this context lokign at sit where agent has reciveved from 3rd party, or party other than p as secret payment permission and haevnt acocutned p for that makes it secret then a wil be in breach of fid duty and wil be obliged to account p for that recipet fo money and can see from statemtn doesn’t need to be done in corrupt tway don’t need to be coruptenes to prove, just needs payment in secret.
