This chapter places the authority of an agent as a central concept of the law of agency, identifying two principal types of authority, namely actual authority (both express and implied, and the various forms of implied authority, such as customary authority and incidental authority) and apparent authority. There is a third form, known as usual authority, but, as will be seen, the reasoning behind the cases that established this form of authority is highly suspect. All three forms of authority are discussed. Determining the existence and type of authority is vital as the legal consequences of an agent breaching their authority can be severe. The principal may not be bound by the agent’s actions and the agent may instead be personally liable. In addition, the agent may lose the commission/remuneration to which they were entitled, and may be found liable for breach of contract and/or breach of warranty of authority.
5. The authority of an agent
5. Creation of agency, and the authority of the agent
D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner
This chapter focuses on the creation of the principal–agent relationship and the authority of the agency and the four ways of creating it: through an express or implied agreement between the principal and the agent; under the doctrine of apparent authority; by operation of law; and through ratification of an unauthorised agent’s acts by the principal. Agency arising out of agreement will always be consensual, but it need not be contractual. After explaining how the agency relationship is created, the chapter examines the authority of the agent such as actual authority, apparent authority, and usual authority.
12. The creation of agency and the agent’s authority
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the creation of agency and its three main parties: the agent, the principal, and the third party. The primary purpose of the agent is to bring the principal and the third party into direct contractual relations, with the principal taking on the rights and liabilities created by the contracts, provided the agent had authority to act. The chapter looks at several kinds of agent’s authority, including actual authority, apparent authority, and usual authority, and also considers agency of necessity as well as cases where the principal may ratify a transaction.
10. The Law of Agency
This chapter begins by defining agency—the relationship which exists between the agent and the principal—and considers the legal relationships created between an agent, his principal, and a third party. It then discusses the different methods by which an agency relationship may be created. The chapter explains the extent of an agent’s authority, the power of an agent to bind his principal, and the rights and duties of an agent. The relationship between agent, principal, and third party is explored and the different rules relating to disclosed and undisclosed agencies. Finally, the termination of an agency relationship is considered and examples of different types of agencies highlighted.
4. Partners and Outsiders
This chapter sets out the vicarious liability of partners for the various forms of partnership liability to third parties. The liability for contracts is based on the concepts of agency and the authority of the partner(s) making the contract, in particular the scope of the implied or usual authority of a partner to bind the other partners. The exception to the undisclosed principal rule is carefully examined. The vicarious liability for torts and crimes committed by a partner is examined, including the apparent paradox of the non-existent legal person of the firm being subject to prosecution. The liability for breaches of equitable liabilities relating to misapplications by a partner is synthesised, including knowing receipt and dishonest assistance in a breach of trust. Then the chapter considers the nature of such liabilities and finally, the effect of a change of partners on such liabilities on both the outgoing and incoming partners.
9. Duty to act within constitution and powers
The Companies Act 2006 (CA 2006) requires directors: to act in accordance with the constitution (defined s 257) and to exercise powers for the purposes for which they are conferred. This chapter focuses on s 171. The discussion covers the constitutional division of power within a company, types of authority, statutory protection of third parties, and exercise of a power for an improper purpose. Much of the discussion is of the important agency rules which govern directors’ authority, considering in particular the extent to which third parties can rely on the apparent or ostensible authority of an individual director or directors. The circumstances in which third parties are put on inquiry are considered. The statutory protection afforded to third parties by CA 2006, s 40 is also examined. The proper purpose doctrine is an important constraint on abuse of power by directors and the application of the doctrine is addressed in detail.