Agency Flashcards

Question 1

Q

what are the things we are looking into within this section?

Answer

A

definition
essential elements of agency relationship
types of agent

Question 2

Q

what is an agent quote by?

Answer

A

Kennedy v De Trafford [1897] A.C. 180

-AGENCY LAW MATTERS BC REALSITICALLY IN BUSINESS CONTEXT OUR COMMERICAL ACTORS ARENT GOING TO EVERTYHIGNT HEMSELVES, HAVE TO LEAN AGENCIES TO SOME EXTENT, WE WANT TO KNOW WHAT AGENYCY LAW SAYS ABOUT THOSE PARTIC RELS HOW DOES AGENCY LAW REGULATE, HOW DOES IT MANAGE RELS BETWEEN PRINCIPAL AND AGENT AND HOW MANAGE RELS COME ABOUT BTW PRICNIPAL AND 3RD PARTY= STARTING PART- THAT SAYS = AGENCY LAW= IS NEC VERY CLEAR AND COHERENT BUT AREA OF LAW THAT HAS DEVELOPED THROUGH COMMON LAW AND LARGELY THRU COMMON LAW TRACES BACK CASES OLD 19TH CENTURY CASES SO NOT ALSO COSISTENT COHERENT ETC , EG old case on slide and some stubbling blocks when approaching law of agency 1st term agent is widely use in everyday parlors, sosome many people refer to agent s when when u look to role compare to legal requirtements they don’t amtch up
This statement says: this tetrm agent used in very misleading way but when u loo at legal oblgiations attache dot what doing they do not fit def of agency, so not everyone called agent is an agent, the other side is there are some people who fulfil agency functions without describing thinking or viewed as agents, so just bc called agents it doesn’t mean it, on other hand someone might be called agent but copared to what they do could be
Book:author of famous agency book..fsdklgwngn??
2nd point don’t agree- possibly something we return to and thinkw hether statement accurate or whether we can challenge, is agency slippery or nit?

Question 3

Q

what did munday say about an agency?

Answer

A

‘The concept of agency is notoriously slippery, and difficult to define’ Munday

Question 4

Q

Why would you want to use an agent as a business person?

Answer

A

You’re business person but you have limitations on ur expertise and knowledge so u might appoint someone to do something for u based on their knowledge on their particular area. to help you carry out certain functions,

Question 5

Q

What is the hazard relying on someone?

Answer

A

1 - you as the principal has rely on trust (principal- person who arranges contractual rels with agent where you look to agent if 3rd party doesn’t do what they’re meant to do)

Question 6

Q

starting point with agency law?

Answer

A

ery clear and coherent but this area of law has developed through common law

Question 7

Q

what about the term agent?

Answer

A

Agent is widely used so can be looked at in a misleading way,

Question 8

Q

so what is meant by this?

Answer

A

not everyone called agent is an agent, the other side is there are some people who fulfil agency functions without describing thinking or viewed as agents- Book:author of famous agency

Question 9

Q

who gave the closet definition to what an agent is?

Answer

A

no fixed term on def but goode on commercial law is the closest?

Question 10

Q

Goode definition of agent?

Answer

A

‘Agency is the relationship arising where
-one person, the principal (P) appoints another, the agent (A)
-to bring about, modify or terminate legal relations
between the principal and one or more third parties (T).

can be a single 3rd party or more than 1’

Question 11

Q

so what happens after an agent is appointed?

Answer

A

can either enter into a contract (most are) or through consent (looser)

Question 12

Q

case for the difference between either contract or consent?

Answer

A

Yasuda Fire & Marine Insurance Co v Orion Marine Insurance UA Ltd [1995] Q.B. 174

Question 13

Q

Yasuda Fire & Marine Insurance Co v Orion Marine Insurance UA Ltd [1995] Q.B. 174 quote? *

Answer

A

‘Although in modern commercial transactions agencies are almost invariably founded upon a contract between principal and agent, there is no necessity for such a contract to exist. It is sufficient if there is consent by the principal to the exercise by the agent of authority and consent by the agent to his exercising such authority on behalf of the principal.’

Question 14

Q

Agent acts on behalf of principal (fiduciary relationship)?

Answer

A

principals are agreeing to an agent to excercise authority - agent agreeing to act on principals behalf and vice versa so there has to be an element of consent

Question 15

Q

why would it seem obvious?

Answer

A

can be obvious when an agent is acting on a principals half but it some cases it isnt

Question 16

Q

what is a fiduciary rels?

Answer

A

there is various obligations that are attached to each role and the person has responsibility, there will be a certain trust and confidence in u

Question 17

Q

why does an agent exercise authority?

Answer

A

Agent exercises authority to bring about binding relations between principal and third party

Question 18

Q

How can you tell a principal is bound by a 3rd party (bring about binding relations)?

Answer

A

principal to be bound by agent the agent has excercised auth

Question 19

Q

what do we look at when we look at exercising auth?

Answer

A

is it valid/invalid which will indicate on top of princiapl is bound to 3rd party by what agent has done

Question 20

Q

what are the different types of agents?

Answer

A

general/special agents
factor
broker
Del credere agent
Commission agents
Confirming houses
Company directors
Partners (Partnership Act 1890, s.5):
Gratuitous agent

Question 21

Q

what about general/special agents?

Answer

A

law recognising the distinction between the two.

Question 22

Q

what is a general agent?

Answer

A

general: authority to act in a class of transactions, or generally

auth kelly to act on behalf decorting my office and all other offices = general agent in purpose - particular class of transactions
acting for somebody in a very general sense e.g ask kelly to act generally in all my business affairs

can be either

Question 23

Q

what is a special agent?

Answer

A

special: u have been appointed as an agent to have authority to act in a particular transaction
e. g if i ask for red ballons agent should get only red.

special agent limited compared to general

Question 24

Q

what is a factor in short?

Answer

A

considered a type of agent

has possession/control of goods to be sold for P
sell/deals with goods without disclosing P’s name, or in P’s name
Factors Act 1889 s.1: ‘mercantile agent’

Question 25

Q

what is the factors act?

Answer

A

factors act 1889

Question 26

Q

what about the act?

Answer

A

so to some extent this is one of those forms of agencies that has some legislative backing but this act is not that exhaustive

Question 27

Q

what does the act refer factors as?

Answer

A

MERCHANTILE AGENTS (which is in sales)

Question 28

Q

what are Del credere agent in short?

Answer

A

negotiates contracts, and guarantees T’s performance of contractual obligations to P - so if third party does not perform their obl, the principal agreed with agent that the agent will then honour those obl- so not just creating binding rels but also do this

Question 29

Q

e.g of del credere?

Answer

A

e.g 3rd party ment to give mone to principal ad don’t ill be the one to pay, so that ahs particular def as a type of agent

Question 30

Q

what are commission agents?

Answer

A

agent also used in sales - contracts with 3rd party in their own name, so they act asif they are principal towards 3rd party therefore liable directly to the 3rd party, but they still have to honour the obligations as the agent to the principal

Question 31

Q

what are commission agents answerable to?

Answer

A

both parties

Question 32

Q

what are confirming house?

Answer

A

purchase goods locally and resell to overseas buyer
negotiate purchase between local seller and overseas buyer
‘confirm’ to local seller that overseas buyer will perform obligations under the contract

Question 33

Q

company directors on slide?

Answer

A

‘What is the position of directors of a public company? They are merely agents of a company. The company itself cannot act in its own person, for it has no person; it can only act through directors, and the case is, as regards those directors, merely the ordinary case of principal and agent…’ Ferguson v Wilson (1866) L.R. 2 Ch.App. 77

Question 34

Q

Company directors?

Answer

A

company relies on on other people to act on its behalf as agents = directors, those directors may be able to delegate some duties to employees and other people but primarily the management

so as much as company is a person it really cant act on own behalf , physical sense has to ct thru people, directors,

Question 35

Q

what are partners?

Answer

A

business as partners = both become agencies for partnership firm so by virture of old act, we are regarded as agent of our partnership firm and we also regarded as being each others agents, so there would be certain actions that I can take on behalf of partnership e.g I make a decision or enter into transaction is it binding on me and binding on the rest of the partnership,

Question 36

Q

act for partnerships?

Answer

A

partnership act 1988

Question 37

Q

what is there in order to be an agent?

Answer

A

there has to be some form of payment behind it, agreement that is going to inform agent getting paid

Question 38

Q

what is the question we ask in regards to partnership?

Answer

A

is it possibnle for someone to be agent with no expectation of payment, can an agency rels arise where someone is doing something for free, with no/ expectation promise of payment

Question 39

Q

what is the category for that question?

Answer

A

Gratuitous agents Chaudhry v Prabhakar [1989] 1 WLR 29 - here you have claimant asked help with car as past driving test so friend helps to find as she doesnt know much found one and said not to buy pther, she specifically asks asks if the car has ever been damaged before and he said NO, , she found problems, not road worthy and sued for not exercising reasonable care/skill as someone acting as agent

Question 40

Q

chaudry outcome?

Answer

A

As someone acting as agent was obliged to exercise lower degree care skill because he was a grat agency compared to other agent and only doing a favour a payment wasn’t involved- court say no due to relying on his expertise, someone knowledgable in the are and someone she could trust and therefore he should be judged according to that degree of skill and care

Question 41

Q

what about the commercial agent?

Answer

A

only form of agent goverened by legislation - Commercial Agents (Council Directive) Regulations 1993

-reason for this leg is bc has route in eu law, and leg is there effectively to set out large protection for commercial agents

Question 42

Q

what does the leg deal with?

Answer

A

does deal with rights and oblig but mainly the protection aspect for commerical agents so many agents want this they try and argue that they are commerical agents so that they can benefit from the protection and regulations, act has def of what a commerical agent is but doesnt really go in depth about what neg involves so have to look case law to some extent to tell us more about how these reg are going to work,

Question 43

Q

about commerical agents?

Answer

A

how to do people come within that def so 1 issues that arisen is, can an agent and this partly what we were asking when looking at ch if u have agent that acquires good from the principal and sells good onto 3rd party if that agent putting own mark up on good can they be considered to be a commercial agent so if the agent is acquiring goods from principal, priced 100 and agent selling them onto 3rd apry for 200 can that person be seen as comemrical agent, intermediary , continure auth to sell goods on behalf principal, according to this case no, that agent would not be regarded as actig on behalf of principal in those circum, so here u have
Pac flex, the agent buying goods from a and b essentially manu by a and b essentially manufactured by and b and selling them onto 3rd parties but selling own marked up price tha they set up themselves not principal, when principal termiend rels, pan flex sued for comp according to regualtions brought rel to end and eserve comp and commercial agent and q was whether fell in def, coa judgement, cant be seen as agent where they had set up markup by their own discretion not principal, not actin gon behalf of princiapal, what fi lower price, same question would arise, are theya citn on own inittive or permission of principal has principal said to them or are they doing it on their own, acting on bealf of principal is the key element of agency, want to disting sit where someone 1 acting on behalf of principal or own interests, so acting in on interests, In those sit agent more own if principal than agent so principal will not be bound by acts

Question 44

Q

commerical agent ??????

Answer

A

Also in sit where agent acquires goods from the seller, acquire goods from principal seller, and agent then appoints own agent to sell goods, if the seller ultimately fires main agent do those sub agents that have ben appointed, do they have any right of comp from principal, so can thosesub agents go to principal bc fired so and so we lost money that would have agiend from this sales, and therefore from principal u should reimburse us- s and t point on board – sub agents persuace ty erupre owe us omp as u fired our principal effectively and q was were they owed comp under the comemrical agents reg could those sub agents be seen as commercial agents, they did fullfill paryt of def but not all, they fulfilled the self employed but they had rels with pricniapl
3rd regulations govern- and if termination of contract what implcaitions are there in erms of hwho is going to be comp and bc reg aimed at protecting commercial agents it means that they apply even when parties have chosen another law to apply to their rels- eaton case- here u have principal absed in California, and u have the agremment beteen themselves and agent in uk say governed by californain law,nut once established commercial agency rels, it was held that regardless of what contract rpved, the regulations applied rather than the law that parties have chosen to govern contract, so regulations will prevail over any choice of law that parties have made contractually

Question 45

Q

How are agency relationships created?

Answer

A

-With consent (we take a more subtle approach)

express agreement
implied agreement

-Without consent

gratuitous agents
agency by operation of law
agency by estoppel/apparent authority
agency by ratification

Question 46

Q

what is meant by consent?

Answer

A

it can be expressed agreement or implied agreement

Question 47

Q

what is the yasuda statement?

Answer

A

‘Although in modern commercial transactions agencies are almost invariably founded upon a contract between principal and agent, there is no necessity for such a contract to exist. It is sufficient if there is consent…’ Yasuda

Question 48

Q

what is the yasuda statement in other words?

Answer

A

we don’t need contract as such to create agency rels, consent is enough ,- could be regarded as rels even though consented expressed/implied

Question 49

Q

statement supporting yusada?

Answer

A

‘They will be held to have consented if they have agreed to what amounts in law to such a relationship, even if they do not recognise it themselves and even if they have professed to disclaim it’ Garnac Grain Company Incorporated v H. M. F. Faure & Fairclough Ltd [1968] A.C. 1130

Question 50

Q

what is meant with without consent gratious rels?

Answer

A

g – already look chaudry– didn’t think agency but courts approached through lens of agency rels without consent, deemed to be in agency rels even though neither though

Question 51

Q

what are the types of expressed consent?

Answer

A

Oral / written (verbal/written)

Law of Property Act 1925
s. 53(1)(a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent …

Question 52

Q

what is meant by a written contract?

Answer

A

-certain sit in which certain formalities have to be complied with within writing and therefore need written agency agreement rather than a verbal 1 e.g issues relating to property u would need to satisfy formalities=written agreement

Question 53

Q

what happened in Heard v Pilley 1869 LR 4 Ch App 548 in regards to a written contract?

Answer

A

agent appointed even though verbal ageement to act on behalf of party in selling or exchanging lease, fine for lease agreement should be conveyed in writing, although done orally it did not undermine enforceability and was said to be a valid agreement (focus on action of parties)

Question 54

Q

what is an implied agreement & case?

Answer

A

Valid implied agreement like in heard- ‘Agreement between principal and agent may be implied in a case where one party has conducted himself towards another in such a way that it is reasonable for that other to infer from that conduct consent to the agency relationship’ - regardless of what happened in p’s mind looked objectively.

Targe Towing v Marine Blast Ltd [2004] 1 Lloyd’s Rep 721

Question 55

Q

Question overall for implied agreement?

Answer

A

(IS IT REASONABLE TO INFER LOOKING AT SOMEONES CONDUCT)

Question 56

Q

case for looking at inferred conduct?

Answer

A

Pickering v Busk (1812) 15 East 38

Question 57

Q

-

Answer

A

s hemp broker- brought hemp for p (his principal) & s bought the hemp in his own name,(brokers tend to not have poss of good) but in this particular case hemp was left in s custody after bought it and it being his custody, s eventually decided to sell hemp to h, so hemp was appointed to buy the hemp for pickering the hemp elft with him and eventually wen to sell in own name to anotehr party and h became bankrupt and couldn’t pay for hemp

Question 58

Q

question in regards to the pickering case?

Answer

A

question was whether s had sold m in accoradance with agency rels, because agency was only to sell hemp

Question 59

Q

-

Answer

A

limit of agency there was no express agremment in consent terms for him, it was implied agreement and from courts perspective applyigntest wehre someone has conducted themselves in sucha way that is reasonable for us to infer consent this is test that courts apleid that we can only look actions of parties and external symbols of woenrship and not proviate communciations btw principal and broker, so cannot what tbthought at time but look at outward actions and symbols and if pickering principal seems to have authosied s to dispose of that particular m in course of trade then I must assume s genrally had authority, so if u elave particular type of goods with somebody who ordinarly sells those types of goods in course of trade this can be treated as implied auth for that person to sell ur goods aswell, okay bc strangers can only look at those outward signs, don’t know what uve discussed with agent no way to know what go thru ur mnds, so even tho its evident that pickering had not given s authority to sell, could be sen was impleid auth if applied trst:has pickering behaved in such a way ??

Question 60

Q

-

Answer

A

even though evident pickering not given s auth to sell = implied auth if impleid test has pickering behaved in such a way for people to infer that swallow has auth yes pikcering has behaved in that way

Question 61

Q

Creation without consent: (1) agency by operation of law 1?

Answer

A

Agency by necessity

Question 62

Q

Agency by necessity

Answer

A

existence of an emergency
impossibility of obtaining principal’s instructions
agent acted in good faith

Question 63

Q

when has a party not entered an agency rels?

Answer

A

Party has not entered into an agency rels where the principal has specifically appointed agent to do particular act and for requirements to be fulfilled for agency by necc- for this type of agency to arise these 3 element above have to be there – EMERGENCY , IMPOSSIBLE, GOOD FAITH , so e.g cases shows that very hard agency of necc sit generally

Question 64

Q

Prager v Blatspiel [1924] All ER Rep 524

Answer

A

P instructs B to buy furs and skins for delivery to him. B sold the furs and skins.

Answer 65

A

dealer based in Romania and defendant firm merchant based in London

-he sends them to buy furs an skin and send them to romania but before d can sell he is occupied by German forces during the war, so Romania occupied and our firm merchant in London no longer able to send to buyer so they’ve soruced it but cant send anymore and essentially sells them and pragar sues shouldn’t have sold, you had no auth and they said there was an emergency it was impossible for us to obtrain constructions from u and we acted in good faith, we did best we culd so we had to sell them

, in this partic case court held that those fur skins were not persibale goods, they could have sold until commun had been restored and then obtained his construction, also when ame to good faith it was pertent those furs and skin not sold in 1 go they actually sold them thru 17 different people at various times which mean tdidnt act in good faith

Answer 66

A

Springer v Great Western Rail Co [1921] 1 KB 257

Consignment of tomatoes sold locally by carrier.

Answer 67

A

tomatoes delivered by western rail and shipped from jersey to reach buyer in covent garden and essentially for 1st half by ship the consignment was hel up by bad weather, so ship was delayed by abd weather, time tey could be transfeered shi to rail, held up byr ail,a dtomatoes went off and rail company sold tomatoes for best price in local area than try and transport to covent garden, and were sued for breach for authorirt/contrat essentially acted as agents of necc aswell EMREGYCN SIT- all gone off unusuale impossible to obtain principal instructons, acted in good faith said not impossible and still could have contract ed principal and chose not to do so, 1921 u can imahien that in this dya and age even harder to prove to do isntructions

Answer 68

A

Consignment of butter sold by carrier before reaching destination.

Answer 69

A

here court more inclined to accept there was agent of necc held up by rail strikes elements were satisfied so as a principle u can bound by acts of agent even tho theyre doing something haven’t appointed them to do as acting in sit of necc

Answer 70

A

Has X acted in such a way as to lead Y to believe that he has appointed Z to act on his behalf?
what if Y contracts with Z on the basis of this belief?
what if Z in fact has no authority, or has exceeded authority conferred on him by X?

-Apparent authority/ostensible authority

Answer 71

A

has our principle acted in such a way as to lead 3rd party to belive this agent is acting on their behalf and if this 3rd party has contracted with agent in that belief, what if we later discovered the agent had no auth by principal/limited and have gone beyond what they done-AGENCY BY ESTOP- but wehen look at auth net week ull find this is reffered to aprent auth or sensible auth

Answer 72

A

‘“apparent” or “ostensible” authority …is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted on by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the “apparent” authority…

Answer 73

A

The representation, when acted on by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract.’ Freeman and Lockyer (a firm) v Buckhurst Park Properties (Mangal) [1964] 1 All ER 630

Answer 74

A

essential comes down to q w

whether the principal made a representation to 3rd party that this agent had auth to act for them and this 3rd pary on basis of such belief entered into contracs with agent and therefore is estopped, principal is estopped from denying that, so once principal made that rep to 3rd part- has principal held out this agent has been someone 1 auth to behave in particular, if principal ahs made that rep to 3rd party and 3rd party enters into that contract, then principal is estoped from denying that the agent had that auth

Answer 75

A

Hogan v London Irish Rugby Football Club Trading Limited 1998 H No. 604
authority of rugby club’s chief coach and director of rugby to enter into agreements with players.

Answer 76

A

coach of rugby club entering into contracts with players of rugby club, setting salary, length of contract, when that s not the am9ht of auth he ahd form club. But the cluv was held to eb bound by the coaches agreements with players bc it was clear from circum that club had presented the coaches being the person who could negotatie it, so the playewrs were entieled to believe this coach had auth when he didn’t

Answer 77

A

Little v Spreadbury [1910] 2 KB 658
‘…if a client by her conduct induces her solicitor to believe that he has authority to make a certain compromise, and he, reasonably relying on that conduct and believing that he has that authority, does make that compromise, the client is bound whether she intended to give that authority or not and whether she in fact understood or did not understand the terms of the compromise.’

Answer 78

A

Simislar sit in litte v spread- her ehad client essently lead solicitor to believe that he ahs auth to make cetain dec and sol relied on that and entered into bidning contract son behalf of his client, regardless if understood, client is now bound by anything sol has sad to 3rd parties on her behald

Answer 79

A

Final creation form without consent

Express: oral or written
Implied from conduct Hogan v London Irish Rugby…

Answer 80

A

u can have parties whom entered into agency rels not wehre piricnoal has pappinted but where agent has engaged in partic actios and principal approves actions after fact, agent has carried out actions / functions without priop auth from pricnipa and principle on findg in agent done approves actions afterwqards he doesn’t have advance dpermission to do those things but pricniap rectifies that conduct, and the retfication can be expressly doene or impleid, and if expressin verbal or written or implied from conduct, sof rom

Answer 81

A

Hogan v London Irish Rugby sof rom rugby case where coach has agency bye stoppel it was found also impleid retification, cos evenw ehnc lub ssw players turning up oaying salary etc it was rectificying coaches decisions, implied rectif

Answer 82

A

Agent must purport to act for a disclosed principal
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.

Answer 83

A

-for that form of agency to arise 3 req must be fulfilled 1st agent must appear to be actin on behalf of principal,well known case kieley – here agent been told to buy corn for part price, goes buys for higher but he doesn’t disclose 3rd party that hes buying for pricniapl, and when p refuses to take delivery of thatc orn the seller sues them and in this case bc agent had not brought price told to the pricniap, could not rectify that aprtic contract where the agent had not even indicated ot 3rd party they were acting for someone , also the principal for that rectification be effective, the pricnopal msut have existed when contract entered into, so if im enetering contract today fro company thatd ont exits, the that company once come into existence, cant rectify that contract he has to engage in different process altogether to rectify or approve what I did and that retification has ot e withinr eaonsbale time bc comerical law PRIZES CERTAINTIY KEY PRINCIPLES OF COMMERCIAL LAW CERTIn, so cant have sit where 3rd party left handing cos they don’t rectify agents actions ro not, don’t know if rpincopal what agent has done or not

Answer 84

A

Kelner v Baxter (1886) LR 2 CP 174 Promoters of new hotel business bought wine from K on behalf of company in process of registration.

Answer 85

A

Ratification must be within fixed or reasonable time

Answer 86

A

‘[c]ommerce would literally grind to a halt if businessmen and merchants could not employ the services of factors, brokers , forwarding agents… and the like and were expected to do everything themselves’ Markesinis and Munday (1998)

Understanding the definition of ‘agency’
Understanding the key elements of an agency relationship
Being able to identify different types of agent
Knowing how agency relationships are formed
with consent, and
without consent

Answer 87

A

1 hand commerce recognised that agents are improtnar for many business contractd to take place and agency rels has to come into being so we need to understand what agency actually is what has to be repsent agency rels, identify different types and also be able to disting quite clear how tic an bcreated with consent and also how it can arise without element of consent

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Agency Flashcards

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