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EKR112 Commercial Law 2 > L3 > Flashcards

L3 Flashcards

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1
Q

What is the primary role of agents in commerce

A

To negotiate and conclude contracts on someone elses behalf

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2
Q

Give some reasons why agents might be appointed

A

They might have specific skills or knowledge in the field of the contract and one person has a limited capacity

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3
Q

An agent might bring about, modify or terminate legual relations of the principle

A

True

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4
Q

Agency is an exception to the privity of contract

A

Yes, there are rights and obligations that arise form agency that does not have to be explicitly stated or implied in a contract

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5
Q

An agency is the name given to the relationship between what

A

the principle, the agent and the outside world third parties

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6
Q

An agent may have power in some cases without the principles consent

A

Yes, f.ex agents of necessity

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7
Q

What is the definition of a commercial agent

A

self-employed intermediary who has continuing authority to negotiate and conclude the sale and purchase of goods on behalf of the principal

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8
Q

Agents are generally self employed

A

True, employees are most often not agents

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9
Q

The common law includes both direct and indirect representation as agencies, while civil law is less clear

A

True

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10
Q

What is an undisclosed agency

A

When the third party is not aware that the agent does not act in their own name. Even if the contract is between the agent and the third party the principle may sue on the contract made on their behalf and the third party may sue the principle if they discover their existance

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11
Q

An agent can not sell and buy property on behalf of the principle

A

False

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12
Q

UK has ratified the 1983 harmonization attempt convention on Agency in the International Sales of Goods, under UNDROIT

A

False, they have not ratified the latest harmonization attempt of agency law

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13
Q

The latest harmonization attempts have mainly been concerned with international dealings and the relationship between the principle and third parties

A

True

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14
Q

When has the agent the power to bind the principle

A

If the principle gives consent before or after the action or if the law deems it apropriate such as in the case of agents of necessity. Also if the principles actions indicate that the agent is authorised

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15
Q

Actual authority is created by a consentual agreement between just the principle and agent, Expressed or implied

A

True

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16
Q

For commercial agents written terms of the agreement is not required

A

False

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17
Q

Actual authority may be extended by ‘customary authority’ which is considered as an ‘overhead’

A

True

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18
Q

What does the expression that an agent cannot pull themselves up by their own shoelaces mean

A

That an agent cannot be the source of their authority even in implication, if they have apparent authority the information leading to such conclusions must come form the principle

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19
Q

For a third party to keep a contact with an apparent agent they need not make appropriate equerries especially if circumstances are suspicious

A

False

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20
Q

A person leading a lost sheep home is an agent of necessity

A

True, unless there was a phone number to the owner of the sheep somewhere on its body

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21
Q

A principle cannot ratify actions not made in their name

A

True

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22
Q

An unborn lunitic may ratify a contract in the future

A

yes if they are borne and sane by the time the contract is made and the contract is not void due to illegality

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23
Q

Ratification can be done any time

A

False, it needs to be done within reasonable time of the signing of the contract

24
Q

You can ratify a part of a contract

A

False, entire act or nothing

25
Q

What is the difference between a bilateral and a unilateral contract

A

Bilateral=agent promises to make an action, Unilateral= principle promises to reward an action (but agent is not required to do it)

26
Q

The nature of the relationship between principle and agent is fiduciary

A

Yes, agents owe loyalty to the principle

27
Q

Commercial agents have rights by regulation that cannot be contracted out of

A

True, by the 1993 council directive

28
Q

Commercial agent rights originate in common law

A

No, civil law

29
Q

Only the regulation between commercial agents and the principle demands that they act dutifully and in good faith towards eachother

A

Yes, that exact defenition is only for commercial agents but it can be argued that duty and good faith is synonimous with a fiduciary relationship although for normal agents that can be contracted out of

30
Q

Commercial agents are not a downtrodden race and need not be afforded protection form their principles

A

While this was delivered in sarcasm by the lord there is some truth to it as independent contractors can be seen to have a power imbalance against their contractor

31
Q

undisclosed commercial agents and temporary agents or commisioning agents are still covered by the 1993 regulation

A

No

32
Q

What is the main role of a commercial agent

A

To negotiate contracts for the principle, and they should have the continous authority to do so and be an independent contractor

33
Q

Haggrling about price under a long period is enough to be classified as a commercial agent

A

They say ‘Negotiation is not only about haggling over price’ so it is probably included

34
Q

An agent wo markets the comapnies services and generates goodwill can be included as a commercial agent

A

False

35
Q

Name some non commercial agents

A

Company officers acting on behalf of their company
* Partners acting on behalf of their partnership
* Insolvency practitioners
* Agents acting on behalf of commodity exchange

36
Q

You cannot get the protections of a commercial agent if you have a main task outside the negotiation of contracts

A

True

37
Q

What are the three main rights of an agent under common law

A

The right if remuneration, indemnification and lien

38
Q

A principle owes remuniration if the agent is the effective cause of a contracted event previously rewarded

A

True

39
Q

What is the right to be indemnified

A

That the agent has the right to be covered for costs and liabilities for legal actions taken within their authority

40
Q

What is lien

A

The right to take a principles property untill they have properly rewarded you

41
Q

What is the difference between general and particular lien

A

Particular lien gives you the right to posess the property related to the liability while general lien gives the right to posess any property of the principle

42
Q

Only Bankers, factors, solicitors and stockbrokers are entitled to a general lien

A

True

43
Q

Lien is not lost when the agent indivates to wave it and cannot be negotiated out of

A

False

44
Q

Principles have a duty to inform the agent of information nececary to handle the goods

A

True

45
Q

If the agent is silent about remuneration they can be assumed to act gratuitusly

A

False, then custom decides, in the absence of custom maybe if there is no other implication

46
Q

When is the agent to be recompensated

A

when the agent has executed the transaction, when the principal has executed the transaction according to the agreement signed by the agent or when the third party has executed the transaction

47
Q

What is bonafide

A

Good faith

48
Q

When may an agent be liable to tort if they are not contractually liable to perform a duty

A

If they have givent signs that they are to do the duty but then does not and fail to inform the principle and their inaction leads to damages

49
Q

What does it mean that agency is a personal duty

A

That the actions must be performed by the agent and delegation is not authorised unless it is allowed by the principle

50
Q

If a subagent is authorised priviti is established between the principle and the subagent

A

True

51
Q

What happens of there are no clear evidence that an agent had the consent to make a sub agent and there is no custom or nececity to make one

A

The contract will be between the agent and the sub agent where there is privity not between the sub agent and the principle, the agent will have to pay commision and so on. However the sub agent still is liable to the tort of negligence and is a fiduciary to the principle

52
Q

What are the duties of a fiduciary

A

*Fiduciary must act in good faith
* Must not profit out of trust
* Must not place himself in position of conflict of interest
* Must not act for his own benefit or benefit of a third person without the consent of the principal

53
Q

What is the duty off account of an agent

A

The duty to keept their and the principles assets separate and to propertly record the contracts made in the name of the principle

54
Q

A principle can retake the commision payed if it is discovered that the agent has been bribed if no harm was done to the interests of the principle

A

Yes,

55
Q

Bankruptcy of the agent will terminate agency if it makes it
makes them unfit for performance

A

True

56
Q

What happens if only the principle wants to terminate an agency agreement

A

It might be a breach of contract and the agent have the right to demand compensation

EKR112 Commercial Law 2 (17 decks)

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