W37: Personhood, legal transactions & agency

Question 1

What are the main subcategories to private law?

Answer 1

1. Contract law (promises have to be kept)
2. Property law (property must be respected)
3. Tort law (harming others is not allowed)

Question 2

What is central to private law, and what does that concept mean?

Answer 2

Central to private law is obligation, which is to do, not to do, or give something.

Question 3

What are remedies?

Answer 3

Remedies are damages, specific performance, or termination.

Question 4

Who can be a party to an obligation?

Answer 4

A person. Be it a natural or legal person; both have rights and obligations.

Question 5

Who is a person?

Answer 5

A person is whose words or actions are considered, either as their own, or as representing the words or actions of another, or of any other thing to whom they’re attributed, whether truly (natural) or by fiction (legal).

Question 6

What is a legal transaction?

Answer 6

A legal transaction is an expression of will having legal effect. The concept of legal transaction builds on the intuition that when a person expresses what they want (and accept to be bound by it), other persons can rely on it.

Social interactions, general conversations, or informal promises usually do not constitute legal transactions as they do not meet the necessary legal requirements.

Question 7

What rights may legal persons have?

Answer 7

• Right to own property
• Right to enter into contracts
• Right to sue
• Right to free speech
• Right to intellectual property

Question 8

What obligations might legal persons have?

Answer 8

• Tax obligations
• Contractual obligations
• Employee obligations
• Environment obligations
• Consumer protection obligations

Question 9

What is property called in the ownership of a legal person?

Answer 9

A legal person may own property, and the technical term used is assets.

Question 10

How is a legal person represented in law?

Answer 10

A legal person is usually represented in law by natural persons who act on behalf and in the name of the corporation. This is typically the board and/or the chief officers (CEO, CFO, etc.).

Question 11

How can a legal person be liable for tort?

Answer 11

Corporations can be liable on the basis of tort, just as natural persons may be: Claims on the corporations can be recovered from all the assets by the corporation.

Question 12

In the context of agency/representation,

What is actual authority?

Answer 12

Actual authority means that a principal is bound to the third party only by acts whcih are within the agent’s authority - not the agent nor the shareholders.

Question 13

In the context of agency/representation,

What is appartent authority?

Answer 13

Apparent authority (falsus procurator) means that a principal is bound despite the absence of actual authority, if:
a. by words or conduct they have allowed another person to appear to the outside world to be their agent; and
b. a third party, acting on a reasonable inference that the person is an agent, has entered into contract with them.

Question 14

What is direct representation / disclosed agency?

Answer 14

Direct representation (civil law) or disclosed agency (english law) means that a contract made by the agent with a third party will bind the principal only if the agent acted in the name of the principal
and
the third party knows or has a reason to know either from the agent or from the circumstances that the contract was intended to become binding on the principal.

Question 15

What is indirect representation?

Answer 15

Indirect representation (civil law) is that if the agent acts “in their own name”, they alone acquire the rights and liabilities under the contract with the third party even though they may have acted solely on the principal’s business and account.

Question 16

What is undisclosed agency?

Answer 16

Undisclosed agency (common law) is if a duly authorized agent and third party enter into contract, the third party acquires rights against both the agent and the principal even though the agency was undiclosed at the time the contract was made.

It not only allows the third party, once the identity of the principal has been revealed to them, to bypass the agent and sue the principal directly but also allows the undisclosed principal to sue the third party.

Question 17

Why do we have agency in corporations?

Answer 17

Agency in corporations results from the idea of seperating corporate bodies from their employees:

It is fair that a corporation should have to pay the personal debts of their directors, and conversely an employee does not expect to have to contribute to the debts of the corporation.

Question 18

What is a claimant or plaintiff?

Answer 18

The claimant or plaintiff makes a claim with as objective to obtain a decision against the other party, such as an award of damages or an injunction.

Question 19

What is a defendant?

Answer 19

The defendant defends against the claim.

Question 20

What is a burden of proof?

Answer 20

The defendant is presumed innocent until the claimant can prove otherwise.