L3 Flashcards
What is the primary role of agents in commerce
To negotiate and conclude contracts on someone elses behalf
Give some reasons why agents might be appointed
They might have specific skills or knowledge in the field of the contract and one person has a limited capacity
An agent might bring about, modify or terminate legual relations of the principle
True
Agency is an exception to the privity of contract
Yes, there are rights and obligations that arise form agency that does not have to be explicitly stated or implied in a contract
An agency is the name given to the relationship between what
the principle, the agent and the outside world third parties
An agent may have power in some cases without the principles consent
Yes, f.ex agents of necessity
What is the definition of a commercial agent
self-employed intermediary who has continuing authority to negotiate and conclude the sale and purchase of goods on behalf of the principal
Agents are generally self employed
True, employees are most often not agents
The common law includes both direct and indirect representation as agencies, while civil law is less clear
True
What is an undisclosed agency
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
An agent can not sell and buy property on behalf of the principle
False
UK has ratified the 1983 harmonization attempt convention on Agency in the International Sales of Goods, under UNDROIT
False, they have not ratified the latest harmonization attempt of agency law
The latest harmonization attempts have mainly been concerned with international dealings and the relationship between the principle and third parties
True
When has the agent the power to bind the principle
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
Actual authority is created by a consentual agreement between just the principle and agent, Expressed or implied
True
For commercial agents written terms of the agreement is not required
False
Actual authority may be extended by ‘customary authority’ which is considered as an ‘overhead’
True
What does the expression that an agent cannot pull themselves up by their own shoelaces mean
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
For a third party to keep a contact with an apparent agent they need not make appropriate equerries especially if circumstances are suspicious
False
A person leading a lost sheep home is an agent of necessity
True, unless there was a phone number to the owner of the sheep somewhere on its body
A principle cannot ratify actions not made in their name
True
An unborn lunitic may ratify a contract in the future
yes if they are borne and sane by the time the contract is made and the contract is not void due to illegality
Ratification can be done any time
False, it needs to be done within reasonable time of the signing of the contract
You can ratify a part of a contract
False, entire act or nothing
What is the difference between a bilateral and a unilateral contract
Bilateral=agent promises to make an action, Unilateral= principle promises to reward an action (but agent is not required to do it)
The nature of the relationship between principle and agent is fiduciary
Yes, agents owe loyalty to the principle
Commercial agents have rights by regulation that cannot be contracted out of
True, by the 1993 council directive
Commercial agent rights originate in common law
No, civil law
Only the regulation between commercial agents and the principle demands that they act dutifully and in good faith towards eachother
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
Commercial agents are not a downtrodden race and need not be afforded protection form their principles
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
undisclosed commercial agents and temporary agents or commisioning agents are still covered by the 1993 regulation
No
What is the main role of a commercial agent
To negotiate contracts for the principle, and they should have the continous authority to do so and be an independent contractor
Haggrling about price under a long period is enough to be classified as a commercial agent
They say ‘Negotiation is not only about haggling over price’ so it is probably included
An agent wo markets the comapnies services and generates goodwill can be included as a commercial agent
False
Name some non commercial agents
Company officers acting on behalf of their company
* Partners acting on behalf of their partnership
* Insolvency practitioners
* Agents acting on behalf of commodity exchange
You cannot get the protections of a commercial agent if you have a main task outside the negotiation of contracts
True
What are the three main rights of an agent under common law
The right if remuneration, indemnification and lien
A principle owes remuniration if the agent is the effective cause of a contracted event previously rewarded
True
What is the right to be indemnified
That the agent has the right to be covered for costs and liabilities for legal actions taken within their authority
What is lien
The right to take a principles property untill they have properly rewarded you
What is the difference between general and particular lien
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
Only Bankers, factors, solicitors and stockbrokers are entitled to a general lien
True
Lien is not lost when the agent indivates to wave it and cannot be negotiated out of
False
Principles have a duty to inform the agent of information nececary to handle the goods
True
If the agent is silent about remuneration they can be assumed to act gratuitusly
False, then custom decides, in the absence of custom maybe if there is no other implication
When is the agent to be recompensated
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
What is bonafide
Good faith
When may an agent be liable to tort if they are not contractually liable to perform a duty
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
What does it mean that agency is a personal duty
That the actions must be performed by the agent and delegation is not authorised unless it is allowed by the principle
If a subagent is authorised priviti is established between the principle and the subagent
True
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
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
What are the duties of a fiduciary
*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
What is the duty off account of an agent
The duty to keept their and the principles assets separate and to propertly record the contracts made in the name of the principle
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
Yes,
Bankruptcy of the agent will terminate agency if it makes it
makes them unfit for performance
True
What happens if only the principle wants to terminate an agency agreement
It might be a breach of contract and the agent have the right to demand compensation
