There is also necessarily the agency where an agent is appointed to act on behalf of a client who is physically or mentally unable to make a decision. This is not always a case of incapacity for work. For example, business owners can designate agents who handle unexpected issues that occur in their absence. An agency relationship is established by the consent of the agent and the client; No one can unknowingly become an agent for another. Although a principal-agent relationship may be established by a contract between the parties, a contract is not necessary if it is clear that the parties intend to act as principal and agent. The intention of the parties may be expressed by their words or implied by their conduct. According to the rules of company law, directors are representatives of the company for which they act and, as such, the general principles of agency law govern in many respects the relationship between the company and its directors. In Watteau v. Fenwick, Justice Lord Coleridge agreed with The opinion of Judge Wills on Queen`s Bench that a third party could hold personally liable a client he knew when selling cigars to an agent acting outside his authority.
Judge Wills noted that “the principal is responsible for all acts of the agent that fall within the authority normally entrusted to a representative of that nature, regardless of the restrictions imposed between the principal and the representative of that power of attorney.” This decision is strongly criticized and questioned, although it is not completely annulled in the United Kingdom. It is sometimes called “habitual authority” (but not in the sense used by Lord Denning MR in Hely-Hutchinson, where it is synonymous with “implicit real authority”). It has been explained as a form of apparent authority or “inherent agency power.” If the Agent has a real or obvious power of attorney, the Agent will not be liable for actions taken under that authority as long as the Agency`s relationship and the Client`s identity have been disclosed. However, if the agency is not or partially disclosed, the agent and client are liable. If the client is not bound because he does not have an actual or obvious power of attorney, the alleged vicarious agent is liable to the third party for the breach of the implied warranty of authorization. Alternatively, the Agency may be dissolved by operation of law: in 1986, the European Communities adopted Directive 86/653/EEC on self-employed commercial agents. In the United Kingdom, this has been transposed into national law in the Commercial Agents Regulations 1993.  Thus, agents and principals in a commercial agent relationship are subject to both the common law and the Commercial Agents Regulations. Agency law deals with any “client” -“agent” relationship; a relationship in which a person has the legal authority to act on behalf of another person. Relationships generally associated with the law of the agency include the deceased guardian, executor or administrator and the employer-employee.
The agency is an agreement, explicit or implicit, by which one of the parties, called the client, entrusts the management of one company to the other, the so-called agent; in his name or on his behalf and through whom the agent assumes the conduct of the business and is responsible for it. As a general rule, anything a person can do themselves, except on the basis of a delegated power of attorney, they can do through an authorized representative. A commercial law representative (also called a manager) is a person authorized to act on behalf of another (called a principal or client) in order to establish a legal relationship with a third party. Officers are required to maintain appropriate accounts of money and property that pass through their hands as part of their agency and to hand over these accounts to their constituents. An agent is strictly required to fully disclose all the interests he must have in the transaction he is supposed to carry out. An agency may be terminated as of right: Consensual relationship established by contract or by law in which a party, the principal, another party, gives the agent the power to act on behalf of and under the control of the principal to deal with a third party. An agency relationship is fiduciary in nature, and the actions and words of an agent exchanged with a third party are binding on the client. If a person is injured by a van, under agency law, the injured person can hold the truck driver`s employer responsible for the injuries, even if the employer was not directly responsible. This is because the driver and the employer are in a principal-agent relationship where the driver, who is the agent in this case, has the legal authority to act on behalf of the employer (i.e., the principal). This has become a more difficult area because states are not consistent in terms of the nature of partnership.
Some States opt for partnership as only a sum of the natural persons who have joined the company. Others treat the partnership as a business unit and give the company its own legal personality as a corporation. For example, in English law, a partner is the representative of the other partners, while in Scottish law “a [partnership] is a separate legal entity from the partners who compose it” and therefore a partner is the agent of the partnership itself. This form of agency is inherent in partner status and does not result from an agency contract with a client. [Citation needed] The United Kingdom`s Partnership Act 1890 (which includes both England and Scotland) provides that a partner acting within his or her actual powers (express or implied) binds the partnership if he or she does something in the normal course of carrying out his partnership activities. Even if this tacit authority has been revoked or limited, the partner has obvious authority unless the third party knows that the authority has been compromised. So if the partnership wants to limit a partner`s authority, it must explicitly inform the world of the restriction. However, there would be little difference in content if English law were changed: The partners are binding on the partnership and not their co-partners individually. For this purpose, the knowledge of the interim partner is attributed to the other partners or to the company, if it is an independent personality.
The other partners or the company are the customer and third parties are entitled to assume that the customer has been informed of all relevant information. This causes problems when a partner acts fraudulently or negligently and causes losses to the firm`s clients. In most states, a distinction is made between knowledge of the company`s general business activities and confidential matters that affect a customer. Thus, there is no attribution if the partner acts as a fraud against the interests of the company. Liability arising from tort is higher if the Company has benefited from the receipt of fee income for work performed negligently, even if only within the framework of the standard provisions of vicarious agent liability. Whether the injured party wishes to sue the partnership or individual partners usually falls within the jurisdiction of the plaintiff, since in most jurisdictions his joint and several liability exists. If the Agency is explicit, it shall be established by deed, orally without writing or in writing. If the agency is implicit, it can be derived from the relationship between the parties and the type of employment (without proof of explicit appointment). An agent`s authority can only be terminated in accordance with the agency contract that first established the relationship between the client and the agent. A client may revoke an agent`s power of attorney at any time, but may be held liable for damages if the termination is contrary to contract. Other events – such as the death, madness or bankruptcy of the client – terminate the relationship between the client and the agent as of right. (Res judicata refers to rights granted or taken away without the act or cooperation of the party, but through the application of the law to a particular set of facts.) The rule that death or insanity terminates an agent`s authority is based on the policy that the client`s assets must be protected from possible fraudulent activity on the part of the agent.
Some states have changed these common law rules, so that some of the agent`s actions are binding on other parties who were unaware of the termination. The Commercial Agents Regulations require officers to act “conscientiously and in good faith” in the performance of their duties (Regulation 3); To a large extent, contracting entities are required to act “conscientiously and in good faith” in their “relations” with their commercial agents (Regulation 4). While there is no legal definition of this duty to act “conscientiously and in good faith,” it has been suggested that it requires clients and agents to act “with honesty, openness and consideration for the interests of the other party to the transaction.” Two “normative rules” contribute to the realization of this norm of behavior: Perhaps the most important element of a principal-agent relationship is the concept of control: the agent agrees to act under the control or direction of the principal. The extent of the client`s control over the agent distinguishes an agent from an independent contractor, over which client control and monitoring can be relatively remote. An independent contractor is subject to the control of an employer only to the extent that it is required to produce the final product of the work it has agreed to provide. Independent contractors have the freedom to use all the means they choose to achieve this final product. If the employer gives more specific instructions or exercises more control over the means and methods to do the work – for example, by giving specific instructions on how to sell or market goods – an agency relationship may exist. .