国际商法双语版 代理法ch5 law of Agency

1、chapter 5: the law of agency,chapter outline,introduction,张某在国内有一辆汽车，后张某出国定居，于是就委托王某为其销售汽车。 西安的甲想把在天津继承的一处私房卖掉，但他既不知天津房屋买卖的行情，又没有时间去天津处理卖房子的各种事宜。于是，甲把此事委托给天津的乙，乙以代理人的身份，用被代理人甲的名义，在找到了买主丙，乙便在甲的授权范围内负责与丙谈判、签订房屋买卖合同，合同的权利、义务则由谁向丙承担,what is agency,definition parties in agency internal and external relat

2、ionships,definition,agency is defined as a fiduciary relationship between two persons in which one (the agent) acts on behalf of, and is subject to the control of, the other (the principal,parties in agency,agent: person authorized by another to act for or in place of him or her. 代理人 principal: pers

3、on who, by agreement or otherwise, authorizes an agent to act on his or her behalf in such a way that the acts of the agent become binding on the principal. 本人 third party: any person doing business with agent. 第三人,internal and external relationships,internal relationship: principal-agent (stipulate

4、d by contract of authorization, contract of employment, partnership contract) external relationship: independent from internal relationship,formation of agency,civil law voluntary agency statutory agency common law express authority implied authority agency of necessity agency by ratification,formin

5、g agency in civil law countries,voluntary agency: formed by the intention of principal oral writing statutory agency: formed by statute parents are the agent of minors director is the agent of corporate,express authority,created by the express authorization of principal most commonly used writing/or

6、al example: alfred is authorized by written agreement to collect rents from a building which peter owns. for this he is to receive 2 percent of all amounts he collects,implied authority,words or conducts facts: a frequently asks b to order from c, and pays the price to c everytime. one day b ordered

7、 from c, but a refused to pay by saying that he didnt authorize b to order this time. custom and usage waiters in restaurant have certain authority and a customer, unless advised to the contrary, may rely on this implied authority. when he pays his bill to the waiter, he may rely on the implied auth

8、ority that the waiter has the right to accept money relationship between principal and agent facts: alice buys meat and other food items at the local store, which she charges. her husband is sued when he does not pay,agency of necessity,an agency by necessity is created lawfully when circumstances m

9、ake such an agency necessary to protect the principals property,agency of necessity,facts: a real estate broker contracts for the repair of burst water pipes in the absence of the owner whose property the broker has been employed to sell. the agent tried to call the principal but failed to connect.

10、the principal refuses to pay for by saying he didnt authorize the broker to repair his water pipe,agency of necessity,facts: an english company authorized a polish company to purchase peltries (皮货) in poland. this polish failed to contact the principal due to the break of war. so he sold it and depo

11、sited the sales income on behalf of the english company. however, the peltries price increased sharply during the war. so the english company sued the polish company for damage, because it didnt authorize the polish company to sell the peltries. the polish company answered its sales conduct is the a

12、gency by necessity,case: 斯佩内葛诉威斯特铁路公司案（1921,铁路公司替原告运一批西红柿到a地由于铁路工人罢工，西红柿被堵在半路上，眼看西红柿将腐烂，铁路公司就地卖掉了 法院认为，虽然铁路公司虽然是善意的，保护原告的利益，但当时是可以通知原告的，在可以联系而未联系的情况下私自处理他人的财物，不能算是具有客观必须的代理权，被告败诉,agency by ratification,unauthorized act: an agent exceeds the limited authority granted a nonagent acts as agent for anot

13、her. ratification is the principals adoption of the agents previously unauthorized act,legal effect of ratification,not binding for principal without ratification if the principal accepts the results of the agents act, then the principal is bound, just as if he or she had authorized the individual t

14、o act as agency,case: effect of ratification,facts: an unauthorized person ordered five doors from parker, a carpenter, to be delivered together with the invoices to zakin. the doors, though not ordered by him, were accepted and used by zakin. parker demanded payment and was told that the price was

15、too high. parker sued for the payment of full price according to his invoice,example: effect of ratification,an unauthorized agent signed a contract on july 1 and the principal ratified the contract on july 15. when was this contract regarded to be signed? july 1,case:某大学诉某百货公司拒不履行合同案,甲某原来是某百货公司的采购员

16、，因经常利用职务的便利吃回扣而被百货公司开除，现在自己经营一家商店。一日他与朋友吃饭时得知某大学正在筹建一语音教室，需彩电20台，便用以前在百货公司是盖有百货公司公章的空白合同书与该大学签订了一份彩电购销合同，每台彩电3000元，共计价款6万元。合同签订后甲某便把合同交给百货公司，并对公司经理说，因其开的商店没有彩电经营权，他因原是百货公司的人，想帮助百货公司作点生意，生意作成后每台彩电邀给他好处费100元。百货公司经理未提出反对意见，并将甲某拿回的某大学的6万元支票入进百货公司的帐户,因当时彩电为紧俏商品，百货公司在一个月后才分别二次向某大学交付了彩电11台，余下9台一直没有交货，某大学多次

17、催百货公司供货，百货公司因确实无货可供，就以此事是甲某所为，他不是我公司职工，这事与我们无关，你们应向甲某要货为由，拒绝向某大学交货。某大学见索货无望，便要求百货公司退回余下货款2.7万元，百货公司则说钱并未交给他们公司，而是交给了甲某，要退款就找甲某去要。某大学无奈，遂向人民法院提起诉讼，要求百货公司退回剩余货款，并赔偿某大学的损失。百货公司辩称，甲某并非我公司的工作员工，他代表我公司与某大学签订的合同我公司并不知道，我们并未授权给甲某让他代我们签订合同，甲某因使用在我单位期间私藏的空白合同书在外签订合同，这样的合同是无效的，给我们公司也造成了重大损失，我们还要追究甲某的经济责任，因此某大学

18、应该向甲某要求赔偿损失，这事与我们公司无关,case:某大学诉某百货公司拒不履行合同案,nondelegable duties,the act required by law to be performed personally by the principal cannot be delegated to an agent. taking an automobile driving test marriage registration/ divorce registration the act required of the principal is personal in nature,

19、he can not delegate to an agent,case:某画店诉马某（画家）案,1999年6月，吉林省某市一画店请画家马某为其作画。双方约定，由马某在本年内为画店作国画四幅，其中包括：两幅山水画，两幅仕女画。纸张、笔墨由画店提供。每幅国画，画店先行付给马某人民币2000元。第二天，画店将预付款8000元及纸张、笔墨送交马某。但是由于马某忙于自己画展的准备，一直无暇为画店作画。同年12月初，马某又应某国之邀出访。临行前，马某将印章、纸墨等留给其学生李某、孙某，要其二人代为作画四幅，于年内送至画店。李、孙二人按照马某吩咐赶作国画四幅，于12月末送至该画店。该画店经过鉴定，发现这四

20、幅国画无论从哪一方面，都与马某的作品有很大差距，认定不是马某所作 。2000年1月，马某出访归来，画店经理到马某处，与其商量，要求重画，马某执意不肯。于是该画店起诉至某市人民法院,termination of agency,act of the parties accomplishment of contract purpose lapse of time period prescribed in agency contract. mutual agreement operation of law incapacity, bankruptcy, death of principal or ag

21、ent illegality impossibility or impracticality,legal effect of termination,duties between principal and agent: terminated. duties toward the third party: the third party is informed: terminated not informed: continue,case: peter was a business man of company a during 1999-2004. peter was in charge o

22、f its business in france and negotiated and signed many contracts with a french company b during that period. in 2005 march, peter quit from company a but continued to sign contract with french company to order clothes. company a knew nothing about it. in october, company b informed a to take delive

23、ry and asked for payment. company a refused and asked to avoid the contract. b sued for damage,case: legal effect of termination,internal relationships,duties of agent to principal fiduciary duty of loyalty duty of obedience duty of care duty of accounting duty of communication duties of principal t

24、o agent duty to pay commission duty to reimburse and indemnify duty to keep accounts,fiduciary duty of loyalty,the agent owes a fiduciary duty of good faith(诚信) and utmost loyalty(忠实) to the principal. conflicts of interest double-agent prohibition self-dealing prohibition competition prohibition co

25、nfidentiality,double-agent prohibition,case: august retained borden to act as a broker in the sale of his house. borden obtained a corporation to buy the house. when august found that borden was an officer of that corporation, did he have the right to avoid the contract of sale? yes. persons cannot

26、act as agents for parties with adverse interests,self-dealing prohibition,the agents own personal financial interests cannot directly conflict with the principals financial interest the agent cant be the buyer/seller if the principal is the seller/buyer the agent cant compete with the principal (non

27、-competition agreement for example) facts: company a authorized company b to purchase a machine in 2000. company b ordered machine from itself and sold to a,confidentiality,confidentiality is necessary because principals often provide confidential information to their agents to further the business,

28、 such as trade secrets, business plans, financial plans, customer lists, sales tactics, manufacturing technologies, new product information,case: 王立生代理行为无效案,王立生是某单位后勤处的负责人。1995年9月，其亲戚家的一头牛得了一种传染病，且使其它15头牛全部被传染，王立生利便用职权之便以该单位食堂的名义买下其亲戚家中16头病牛，随后又找人将该16头病牛全部杀掉，并把牛皮送其亲戚，牛肉运回本单位食堂，其亲戚送给他1000元作为酬谢。由于牛肉感染

29、病毒，本单位职工食用后发生9人中毒，食堂只好将剩余的牛肉倒掉，造成经济损失20000余元。有人将此事向单位反映后，单位责令王立生追回牛肉款。王立生表示，牛肉是其亲戚的，他是代理单位购买牛肉，发生损失应当由单位负责，与其个人没有关系。其所在单位遂起诉至区人民法院，要求王立生及其亲戚归还牛肉款,duty of obedience,agents must generally obey any reasonable directions the principal provides that will impact the principals business, and is liable for

30、any loss if he deviates. exception? instructions are illegal, immoral or against public policy in the event of a sudden emergency,case: obedience,facts: roark was instructed by his principal to ship certain merchandise at a definite time, by a designated carrier. roark shipped by another carrier bec

31、ause he thought he might save money. the merchandise was lost,duty of care,agent must use reasonable skill and care in conducting the principals business. does the law require the agent guarantees success? no is the fact of not to be paid affect his duty of care? no,duty of accounting,all property a

32、nd funds belonging to the principal are required to be accounted for adequately. the agents individual property must be kept separate from the principals property,duty of communication,agents must communicate to the principal all relevant information and notices they receive in the course of perform

33、ing the principals business,case: agents duties to principal,facts: marry authorized peter, a real estate broker to find a buyer for her farmland. peter got information that the land price will increase sharply so he decided to buy it himself at the price of $800 per acre and signed contract with ma

34、rry. however, after that marry found another buyer and sold the land at the same price. peter later found a buyer at the price of $1250. peter sued for damages. issue: can peter get this compensation? which duties have been broken,case: agents duties to principal,decision: as an agent, peter broke h

35、is duties so marry has the right to avoid the contract. duty of loyalty communication,duty to pay commission,the amount and time to pay is decided by: agreement, for example: peter authorizes marry to buy computer. it states that marry can get $20 for it in their agreement. no agreement, custom, for

36、 example: e.g. in china, the tenement rent agent charges the rent of one month as commission. contingent compensation (权变报酬) the compensation is made contingently on results. sales agents: paid an agreed-on percentage of the value of the sales they made lawyers (in tort actions): contingent fees, if

37、 they win the case for the plaintiff, they got some share (often 1/3) of the recovery; if they fail, no compensation,case: commission,facts: peter was a broker working in a real estate broke corporation. he produced a buyer who was “ready, willing and able” to buy. the buyer didnt sign the contract

38、because he wanted to tell his wife before sign the contract. the next day, peter quit the corporation. two days later, the buyer come and signed the contract with the principal,duty to pay commission,if the principal negotiates and concludes the contract with the third party directly, shall he pay c

39、ommission? agreement of agency no statement in agreement agents contribution: paid no agents contribution: not paid exception: sole agent for an area: paid,duty to pay commission,for the subsequent contracts? agency contract expires agreement of agency no agreement: procuring cause 引致原因 when an agen

40、t was the primary factor in a purchase or sale, he may be entitled to compensation regardless of who eventually completes the sale,case: willis v. champlain cable corp,facts: willis was employed to find buyers for haveg industries wire products. his agency contract permitted either party to terminat

41、e the agreement on 30 days notice. in the event of such termination, the agreement entitled willis to commissions only on orders accepted by haveg up to and including the termination date. during his employment, willis convinced boeing company to choose havegs product. however, before boeing made an

42、y orders, haveg terminated williss contract. boeings first major order did not occur until more than a year and a half after this termination and the company continued to make major purchases during the next five years. willis sued haveg to recover his commissions on all purchases made by boeing dur

43、ing the five years following his termination,case: willis v. champlain cable corp,issue: is willis entitled to the commissions as the procuring cause of the orders? decision: no. the right to commissions is dependent on the terms of the contract. here, as the contract between them is clear and unamb

44、iguous regarding the payment of commissions, the procuring cause rule should not override the written contract,duty to reimburse and indemnify,if the agent is acting within the scope of authority the principal has a duty to reimburse the agent for expenses; to indemnify the agent for losses if expen

45、ses or losses are caused by the agent fault the principal will not be required to reimburse or indemnify example: david is a salesperson for a company. he is in chicago when he is asked to go to a foreign trade show. he uses his own funds to pay workers to set up the companys booth at the show. the

46、company has a duty to reimburse him for his expense,duty to keep accounts,the principal has a duty to keep records by which the commission due the agent can be determined. example: an employer must keep and make available to a salesperson a record of the sales on which commissions have been earned,e

47、xternal relationship,civil law countries rules direct representation indirect representation common law countries rules disclosed principal (named principal) partially disclosed principal (unnamed principal) undisclosed principal unauthorized contracts,direct representation,definition: agent acts wi

48、th the third party in the name of principal. show the name the principal not show, but declare the existence of principal who has the rights and liabilities with the third party? principal: yes agent: no,indirect representation,definition: agent acts with the third party in his own name. who has the

49、 rights and liabilities with the third party? agent: yes principal: cannot hold the third party liable, cannot claim or sue the third party directly two contracts needed to claim or sue the third party: contract between agent and the third party contract between agent and principal to transfer the r

50、ights and duties from agent to principal,case: direct and indirect representation,facts: anna wants to buy a set of furniture. however, as she knows little about furniture, she authorized black to buy one for her. after market investigation, black signed contract in the name of anna with a furniture

51、 sales company. when the furniture delivered to anna, she refuses to pay by saying she doesnt like the furniture style. issue: is anna liable to take delivery and pay? decision: yes. this is direct representation. under direct representation, agent is free from contractual liabilities, and principal

52、 is liable for the contract,case: direct and indirect representation,facts: marry put her bicycle in a store and authorized the store to sell it. the store sold it to peter but didnt tell him it was of marry. issue: 2 days later, peter found the bicycle didnt work. whom should peter sue for compensa

53、tion? decision: the store, because this is indirect representation issue: if peter bought it on credit, but refused to pay later. whom should marry sue for compensation? decision: the store,disclosed principal (named principal,definition: a principal whose existence and identity are known to the thi

54、rd party who has the rights and liabilities of contract? principal agent: drops out,partially disclosed principal(unnamed principal,definition: the agent only discloses the existence, but not the name, of his principal who has rights and liabilities of contract? principal,undisclosed principal,defin

55、ition: both the existence and identity of principal is unknown to the third party. who has the rights and liabilities of contract? agent: liable principal: has the right to intervene, claim and sue the third party directly the third party has an option: elect to hold liable and sue either the principal or the agent,comparison: civil law and common law,direct representation in civil law system and disclosed and partially disclosed principal in common law sy