關于代理法的介紹
關于代理法的介紹 LAW OF AGENCY INTRODUCTION
Definition 定義
“代理”雙邊協商一致，當事人一方委托授權另一方以他的名義代理執行任務。
"Agency" - a bilateral, onerous, consensual contract whereby one party, the principal, authorises another, the agent, to execute business on his behalf.
Agency involves three parties:
• Principal
• Agent
• Third Party
and two contracts:
Capacity 作用
Same rules regarding capacity as with any other contract.
The principal must have the necessary capacity.
Note the capacity restrictions on:
• Young people
• Enemy aliens
• Companies prior to incorporation
提魯內爾維利制糖有限公司訴莫里斯，屈臣氏和雅漾有限公司案（案例1）科爾納和巴克斯特（案例2）
Tinnevelly Sugar Refining Co Ltd v Mirrlees, Watson &Yaryan Co Ltd (Case 1)Kelner v Baxter (Case 2)
CONSTITUTION OF AGENCY 機構的憲法
Agency relationship may arise in one of five ways:
• Express Agreement
• Implied Agreement
- Implied by Conduct
- Implied by Law
• Holding Out
Creation of agency by holding out requires:
- Representation by principal
- Reliance by third party
- Alteration of third party’s position
弗里曼、洛克耶和巴克赫斯特公園地產（案例3）
Freeman &Lockyer v Buckhurst Park Properties (Case 3)
• Ratification
Lass Salt Garvin v Pomeroy (Case 6)#p#分頁標題#e#
Requirements for ratification:
- Principal in Existence
Kelner v Baxter (Case 2)
- Principal with Capacity
- Ratification must be Timeous
Goodall v Bilsland (Case 4)
- Agent Acting as Agent
KeighleyMaxted& Co v Durant (Case 5)
- Principal Aware of Material Facts
• Agency of Necessity
Requirements:
- Genuine necessity
- Communication impossible
- Actions in the interests of the principal
Great Northern Co v Swaffield (Case 7)
Springer v Great Western Railway Co (Case 8)
CATEGORIES OF AGENT 各類代理
Traditional distinction between general and special agents is now of limited importance.http://www.ttc-switch.com/dissertation_writing/Law/
Other common kinds of agent:
• Mercantile Agents
People employed to buy and sell.
Divided into factors and brokers.
Glendinning v Hope & Co (Case 9)
• Del Credere Agents and Confirming Agents
Mercantile agents who undertake to indemnify the principal if the third party fails to perform the contract.
• Estate Agents#p#分頁標題#e#
Regulated by: Estate Agents Act 1979 Property /Misdescriptions Act 1991
• Shipmasters
Captain or similar officer of a ship has wide powers.
• Commercial Agents
Commercial Agents (Council Directive) Regulations 1993 Self-employed intermediaries with continuing authority to negotiate and/or conclude sales.
AUTHORITY OF AN AGENT 代理人的權限
Agent can only bind principal in contract with third party if he has the necessary authority.
Authority may be:
• express
• implied
• ostensible or apparent
• presumed.
The first two are actual authority, the others are deemed to exist by law.
• Express Authority
Set out by contract.
• Implied Authority
Defined by nature of employment or task.
Barry, Ostlere& Shepherd v Edinburgh Cork Importing Co (Case 10)
Riverford Finance v Kelly (Case 11)
SMC Electronics Ltd v Akhter Computers Ltd (Case 12)
Sinclair, Moorhead & Co v Wallace & Co (Case 13)
• Ostensible Authority
Authority that the agent has been held out as having.
International Sponge Importers v Watt (Case 14)
Watteau v Fenwick (Case 15)
Racing UK Ltd v Doncaster Racecourse Ltd (Case 16)
British Bata Shoe Co v Double M Shah (Case 17)
• Presumed Authority
Arises in cases of agency of necessity.
DUTIES OWED BY AGENT TO PRINCIPAL#p#分頁標題#e#
• Duty to Obey Instructions
Gilmour v Clark (Case 18)
Graham & Co v United Turkey Red Co (Case 19)
• Duty not to Delegate
Delegatus non potestdelegare - an agent must not delegate. There are exceptions.
De Bussche v Alt (Case 20)
• Duty of Care and Skill
• Duty to Account
Tyler v Logan (Case 21)
• Duty of Relief
Milne v Ritchie (Case 22)
• Fiduciary Duty
Duty of loyalty and good faith. Restricted to what is done in the course of the agency.
Lothian v Jenolite Ltd (Case 23)
The duty has 3 aspects:
- Agent must not transact with the principal on his own behalf.
McPherson’s Trustees v Watt (Case 24)
- Agent must not receive any profit, commission or benefit from the third party. If he does, the following consequences may follow:
- Principal can claim the benefit
Ronaldson v Drummond & Reid (Case 25)
De Bussche v Alt (Case 26)
- Agent loses his commission and may be dismissed
- Principal may be able to claim damages from third party#p#分頁標題#e#
- Principal may be able to rescind the contract with the third party.
- Criminal penalties under the Prevention of Corruption Acts 1906 and 1916.
- Agent owes a duty of confidence in respect of information gained through the agency. Liverpool Victoria Friendly Society v Houston (Case 27)
RIGHTS OF AGENT AGAINST PRINCIPAL 代理人的主要權利
• Right to remuneration
Agreed rate, customary rate or quantum meruit ("as much as it is worth")
Kennedy v Glass (Case 28)
PJ Pipe & Valve Co Ltd v Audco India Ltd (Case 29)
• Reimbursement of legitimate expenses
Drummond v Cairns (Case 30)
Tomlinson v Scottish Amalgamated Silks (Case 31)
• Relief from legitimately incurred liability
Stevenson v Duncan (Case 32)
Marshall Wilson Dean & Turnbull v Feymac Properties (Case 33)
Robinson v Middleton (Case 34)
• Lien
The right to hold on to possession of goods until the owner of them has paid a debt or fulfilled an obligation. Lien may be general or special.
RIGHTS AND LIABILITIES OF THIRD PARTIES 權利與第三方的關系
Depend on the way in which agent contracts with third party.
• Agent transacting as agent for named principal
Principal and third party are bound to the contract.
Stone & Rolfe Ltd v Kimber Coal Co (Case 35)
Armour v Duff & Co (Case 36)
Exceptions:
- Delcredere agents and confirming agents#p#分頁標題#e#
- Custom of trade - e.g. solicitors.
Livesey v Purdom& Sons (Case 37)
- Agent has a personal interest in the contract
Mackenzie v Cormack (Case 38)
- Principal is not a legal person
• Agent transacts as agent for un-named principal
Gibb v Cunningham & Robertson (Case 36)
• Agent contracts as principal
- Principal can enforce contract
Bennett v Inveresk Paper Co (Case 40)
- Third party can elect to sue principal or agent
Ferrier v Dods (Case 41)
• Agent contracts as agent, but exceeds actual and ostensible authority.
No action under the contract, but agent can be sued for breach of warranty of authority.
Collen v Wright (Case 42)
Yonge v Toynbee (Case 43)
Anderson v Croall& Sons Ltd (Case 44)
Irving v Burns (Case 45)
TERMINATION OF AGENCY 終止代理
• Completion of transaction or expiry of time
• Mutual agreement
• Revocation by principal (not possible if there is a procuratory in rem suam)
• Renunciation by agent
• Frustration
Agency is frustrated by:
- Death of principal or agent#p#分頁標題#e#
- Insanity of principal or agent
But (Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, s.71) insanity of principal will not terminate a power of attorney or deed of factory and
commission granted after 1 January 1991.
- Bankruptcy of either party.
- Cessation of principal’s business
Patmore & Co v Cannon & Co (Case 43)