| what is an agent personally liable? (termination) | where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked
> Seymour v Bridge |
| what is an agent personally liable? (termination) | where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked
> Seymour v Bridge |
| what is an agent personally liable? (termination) | where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked
> Seymour v Bridge |
| what is an agent personally liable? (termination) | where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked
> Seymour v Bridge |
| Which legislation (and section) gives the definition for a commercial agent? | The Commercial Agents (Council Directive) Regulations 1993, s.2 (1) |
| What are the four ways that agency can be created? | Agreement
Ratification
Ostensible/apparent authority
Necessity |
| Which ways can agreement be created? | through contract - whether written or orally agreed
through lack of capacity from the agent or principal
the agent is to act gratuitously |
| what does express actual authority require? (agreement) | that an agent must ask for clarification when acting under a principal. the agent will not be able to rely on the vagueness of the principal's instructions. |
| how can implied authority be established? (agreement) | through relationships
> Waugh v Clifford & Sons - implied relationship between a solicitor and client |
| what are the seven conditions for ratification to be created? | 1 the agent must purport to act for a named or identifiable principal
2 the principal must have actually existed and been ascertainable at the time the contract was made
3 the principal must have the necessary capacity to make that contract
4 it must be timely
5 nullities cannot be ratified
6 the principal must have full knowledge of the facts
7 ratification can be created orally or written, but need not be communicated to the TP |
| what is ratification? | a principal who has not given their authority to an agent, but may want to enter the contract the agent has proposed to them.
> Wilson v Tumman |
| yes or no: if the agent makes a contract with the third party, which is yet to be ratified by the principal, and the TP decides to withdraw, is the contract still valid? (ratification) | yes, the third party will still be bound by the contract made. this is due to the TP agreeing to deal with the principal, but they have yet to have accepted it
> Bolton v Lambert |
| what are the key cases that principals must have capacity to enter into a contract? (ratification) | Firth v Staines - the agent must not exceed their given authority or where they were given no authority at all
Bird v Brown - the principal must be capable of doing the act at the time |
| what is the key case that a principal must be named or identified? (ratification) | > Keighley, Maxsted & Co. v. Durant 1901 - agent used their name on the delivery rather than the principals. principal ratified and later decided not to take the delivery. since it was in the name Durant, the agent could not sue |
| why must principals be in existence? (ratification) | promoters of companies enter into contracts before the company exists, creating complications.
> Kelner v Baxter |
| true or false: when there is not fixed time limit on performance, ratification is based on 'reasonable time' (ratification) | true, when the principal has notice the act will be performed, this will have to be done in reasonable time |
| yes or no: can a contract be made valid with ratification when its void in law? | no, since this is a nullity |
| what is ostensible authority? | where a principal gives a third party the impression that the agent is authorised to act as one, but actually is not, the principal will still be bound by the contract |
| what are the four ingredients for ostensible authority? | A representation must have been made that the person had authority to act as agent.
The representation must be one of fact, not law.
The representation must have been made by the principal to the third party.
The third party must have relied on the representation. |
| what is the key case for ostensible authority? | Summers v Solomon - D owned a jeweller's shop. he employed a manager and as part of the role, they ordered jewellery for the shop. the manager left the role, and the plaintiff was employed. they believed that as part of their job, they had to order jewellery for the shop. D did not inform the plaintiff that he was taking away that part of the job and absconded the jewellery. the D was liable as he had not informed the plaintiff and the plaintiff was basing the job off previous authority. |
| how is authority as an agent established? (ostensible) | expressed or implied, the third party must believe the agent is representing the principal. the third party can also not consider the agent as the principal |
| what is the key case for representation being relied upon for the agency? (ostensible) | the 'Ocean Frost' 1986 |
| true or false: the third party believing that the agent who represented the principal can be made by anyone (ostensible) | false, only the principal can give the third party the impression that the agent works for them |
| true or false: representation must be one of fact and not law | true, A misunderstanding by a third party as to the legal effect of some statement by the principal does not affect the contractual position |
| what is necessity? | where an agency will be created due to the perishing of goods and necessity of the situation |
| what is the key case for necessity? | Couturier v Hastie |
| what conditions must necessity be under? | 1 The action was the only one practicable in the circumstances: Prager v. Blatspiel, Stamp & Heacock Ltd 1924. So a master faced with perishing goods has the right to dock at the nearest port and sell the goods for the best price he can get, as in Couturier v. Hastie.
2 The carrier or master had no opportunity at the time to obtain instructions from the owner: Springer v. Great Western Railway 1921.
3 The carrier or master acted honestly and in the interests of the owner. |
| what does Springer v Great Western Railway establish? (necessity) | that if the carrier has no time to get instructions from the owner, they are allowed to sell the produce that is going bad |
| what is termination from performance? | where an agent is dismissed when they have performed the transaction or act the contract requires |
| what will happen if the agent continues after the contract has been terminated through performance? | the principal adopts the agents further conduct and contracts through ostensible authority. therefore the principal will have to give third parties notice in the future that the agent does not work with them. |
| what is a termination of notice and who can invoke this? | both parties can enact it. this is simply where one party wants to terminate the agency through giving notice of their leaving. this can be done orally or through writing
> The Margaret Mitchell |
| true or false: acting inconsistently with the agency's contract does not automatically terminate the agency | false, it will automatically terminate the contract
> EP Nelson & Co v Rolfe |
| yes or no: the party has to be aware that the other has passed away for the agency to end | no, the agency ends whether or not the other party is aware
However, an attorney may take over and survive the death of the person |
| what does Yonge v Toynbee establish? (termination) | that if either the principal or agent is registered insane and that they are unable to give consent, then the agency is terminated |
| what does Turner v Goldsmith establish? (termination) | that agency comes to an end when the principal's business does due to closure. agents may be entitled to compensation due to the future commission they miss out on |
| how is bankruptcy dealt with in agency? (termination) | if it's the principal, then the agency is automatically terminated and if they have mutual accounts, the agent must be notified before they are tampered with
> Elliot v Turquand
if its the agent, then the authority is only terminated if the agent is deemed unable to perform his duties
> McCall v Nunn |
| what is a non-consensual agency? how can it be terminated? | one example is apparent/ostensible authority. when the third party is notified that the principal is insane, this terminates the contract.
another is necessity. agency can be terminated by simply giving the agent notice. however this is limited due to the necessity of certain situations.
> Great Northern Railway Co v. Swaffield 1874 - the owner of a horse entrusted to the railway company for transport had stated that he would not be responsible for the cost of feeding and stabling the horse. When he did not collect the horse once it had arrived at its destination, the railway cared for the horse and subsequently claimed its costs for feed and stabling. The court held that the railway was ‘… bound from ordinary feelings of humanity to keep the horse safely and feed him’. |
| what type of ways can consensual agencies be terminated? | performance
notice
inconsistent conduct
insanity
death
cessation or transfer of business
bankruptcy |
| what are the types of non-termination agencies? | irrevocable or enduring powers of attorney
authorities coupled with interests
where the agent is personally liable |
| what is an agency coupled with an interest? (termination) | Where an authority is granted by deed or for valuable consideration, and the purpose is to protect an interest which the agent has independently of the agency (in other words, not to secure his commission, for instance), then the authority is irrevocable, and the agency cannot be terminated prematurely |
| what is an agent personally liable? (termination) | where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked
> Seymour v Bridge |
