金融市场与机构案例

1、12Warming-up Exercise - A case analysis AlbertAlbert is the manager of a supermarket owned by BerthaBertha. In January BerthaBertha told AlbertAlbert not to buy any biscuits(饼干) from a new company, Crunch & Co, because she has heard that their products are of a poor quality.3 In February, Smooth

2、, a representative of Crunch & Co, visited the supermarket and met with AlbertAlbert. Smooth was not aware of BerthaBertha s instructions to AlbertAlbert. After the meeting and a very persuasive sales pitch(推销方式) from Smooth, AlbertAlbert ordered 100 worth of biscuits from Crunch & Co.4 Late

3、r that day BerthaBertha discovered the order AlbertAlbert had placed with Crunch & Co and confronted AlbertAlbert . An argument ensued (followed) and AlbertAlbert resigned.5 The following day, AlbertAlbert went to Drinkit Ltd, BerthaBertha s regular supplier of alcohol, and purchased six cases o

4、f whisky on credit in BerthaBertha s name. He then absconded (ran away) with the whisky.6A Case If you are at a restaurant and your waitress tells you that she can give you a free beverage(饮料) if you pay for an entre(主菜), she has made a contract with you on behalf of the business by which she is emp

5、loyed. It is implied that she is given the authority to do so by the fact that she is the sole employee of the business who has been designated to complete a transaction with you. 7 Continuing the scenario, suppose that a manager were to come to your table and inform you that your waitress has made

6、a mistake; that the free beverage w/ paid entree offer has expired and that you will be expected to pay for your beverage. At this point the business is in direct violation of a legally enforceable contract made between you, the client, and their employee.8 They may penalize the employee for the mis

7、take, but Implied Authority of Contract places them under a legal obligation to honor the terms of the agreement.9Apparent/Ostensible Authority (表见授权). Apparent authorityApparent authority is a term used in the law of agency to describe a situation in which a P leads a TP to believe that an A has au

8、thority to bind the P, even where the A lacks the actual authority to bind the P. 10 Agency that arises when a principal creates the appearance of an agency that in actuality does not exist. - When an apparent agency is established, the P isP is estoppedestopped from denying the agency relationship.

9、 - It is the P Ps actionss actions that create an apparent authorityAgency by estoppel(表见代理)11It happens in the circumstances: An agency relationship has ceased to exist but the P has failed to give notice to the TP. No agency relationship has ever existed, but the P allows a TP to believe the A was

10、 acting on the Ps behalf. An agency relationship exists and the P allows a TP to believe that the As authority is greater than it is.Differences between implied authority and apparent authority Forbid expressly no implied authority No express authority no implied authority Incidental or main authori

11、ty1213Freeman & Freeman & LockyerLockyer v v Buckhurst Park Properties Buckhurst Park Properties ( (MangalMangal) Ltd 1964) Ltd 1964 In the above case, the Board of Directors had permitted a Director to perform the duties of a managing director (MD) when in fact a MD had not been appointed.

12、The Board refused to pay for work ordered by the Director on grounds that he had no authority. Held: The Board was under a duty to inform the TP that D was not an MD. They were estopped. There was agency by estoppel(表见代理).14APPARENT AUTHORITY 1Diplock L.J. in Freeman & Lockyer v Buckhurst Park P

13、roperties (Mangal) Ltd“An apparent or ostensible authority is a legal relationship between the principal and the contractor created by a representation(表象), made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on beha

14、lf of the principal into a contract of a kind within the scope of the apparent authority, so as to render the principal liable to perform any obligations imposed upon him by such a contract.” 15APPARENT AUTHORITY 2Look Mr. Freeman, essentially what the Board is telling you is that I have authority t

15、o represent the company for this contract!Freeman Director 16ACTUAL V APPARENT AUTHORITY COMPANYCOMPANYAGENT/DIRECTORAGENT/DIRECTORTHIRD PARTYTHIRD PARTYActual authority subject to limitations in articles etcApparent authority subject to terms of representation about agents authority17AgentThird partyPrincipalOfficerThird partyCompanyContractAuthority?Negot