lawofAgency代理法分析

1、The Law of AgencyChapter OutlineIntroduction1What is Agency2Formation of Agency3D Duties of agent and principaluties of agent and principal4Termination of Agency5Internal Relationship6External Relationship7Introductionm张某在国内有一辆汽车，后张某出国定居，于是就委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。托王某为其销售汽车。 m西安的甲想把在天津继承的一

2、处私房卖掉，但他既不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。屋买卖合同，合同的权利、义务则由谁向丙承担。What is AgencymDefinitionmParties in ag

3、encymInternal and external relationshipsDefinitionmAgency 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 agencymAgent: person authorized by another to act for or in place of

4、 him or her. 代理人代理人mPrincipal: person 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. 本人本人mThird party: any person doing business with agent. 第三人第三人Internal and external relationshipsmInternal r

5、elationship: principal-agent (stipulated by contract of authorization, contract of employment, partnership contract)mExternal relationship: independent from internal relationship被代理人被代理人/本人本人 principal代理人代理人 agent第三人第三人 a third personagency代理Nondelegable dutiesmThe act required by law to be performe

6、d personally by the principal cannot be delegated to an agent. E.g. Voting Taking an automobile driving test Marriage registration/ divorce registrationmThe act required of the principal is personal in common, he can not delegate to an agent.Case:某画店诉马某（画家）案m19991999年年6 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

7、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张、笔墨由画店提供。每幅国画，画店先行付给马某人民币20002000元。第元。第二天，画店将预付款二天，画店将预付款80008000元及纸张、笔墨送交马某。但是由于马某忙于元及纸张、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。同年自己画展的准备，一直无暇为画店作画。同年1212月初，马某又应某国之月初，马某又应某国之邀出访。临行前，马某将印章、

8、纸墨等留给其学生李某、孙某，要其二邀出访。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，于四幅，于1212月末送至该画店。该画店经过鉴定，发现这四幅国画无论从月末送至该画店。该画店经过鉴定，发现这四幅国画无论从哪一方面，都与马某的作品有很大差距，认定不是马某所作哪一方面，都与马某的作品有很大差距，认定不是马某所作 。20002000年年1 1月，马某出访归来，画店经理到马某处，与其商量，要求重画，马某执月，马某出访归来，画店经理到马某处，与其商量，要求重画，

9、马某执意不肯。于是该画店起诉至某市人民法院。意不肯。于是该画店起诉至某市人民法院。Internal RelationshipsmDuties of agent to principal Fiduciary duty of Loyalty Duty of obedience Duty of care Duty of accounting Duty of communicationmDuties of Principal to Agent Duty to pay commission Duty to reimburse and indemnify Duty to keep accountsFidu

10、ciary duty of LoyaltymThe agent owes a fiduciary duty of good faith(诚信诚信) and utmost loyalty(忠实忠实) to the principal. . Conflicts of interestDouble-agent prohibitionSelf-dealing prohibitionCompetition prohibitionConfidentialityDouble-agent ProhibitionmCase: August retained Borden to act as a broker i

11、n 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?mYes.mPersons cannot act as agents for parties with adverse interests.Self-dealing prohibitionmThe agents own

12、 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-competition agreement for example)mFacts: company A authorized company B to purchase a

13、machine in 2000. Company B ordered machine from itself and sold to A.Case: 王立生代理行为无效案m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

14、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。confidentialitymConfidentiality is necessary because principals often provide confidential information to their agents to further the business, such as trade secrets, business plans, financial plans, customer lists, sales tac

15、tics, Manufacturing technologies, New product informationDuty of obediencemAgents must generally obey any reasonable directions the principal provides that will impact the principals business, and is liable for any loss if he deviates.mException? Instructions are illegal, immoral or against public p

16、olicy In the event of a sudden emergencyCase: obediencemFacts: Roark was instructed by his principal to ship certain merchandise at a definite time, by a designated(指定的) carrier. Roark shipped by another carrier because he thought he might save money. The merchandise was lost.Duty of caremAgent must

17、 use reasonable skill and care in conducting the principals business.mDoes the law require the agent guarantees success? NomIs the fact of not to be paid affect his duty of care? NoDuty of accountingmAll property and funds belonging to the principal are required to be accounted for adequately.mThe a

18、gents individual property must be kept separate from the principals property. .Duty of communicationmAgents must communicate to the principal all relevant information and notices they receive in the course of performing the principals business. .Case: agents duties to principalmFacts: Marry authoriz

19、ed 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 Marry. However, after that Marry found another buyer and sold the land at the same p

20、rice. Peter later found a buyer at the price of $1250. Peter sued for damages.mIssue: can Peter get this compensation? Which duties have been broken? Case: agents duties to principalmDecision: As an agent, Peter broke his duties so Marry has the right to avoid the contract. Duty of loyalty Self-deal

21、ing prohibition communicationDuty of principal: Pay Commissionmthe 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 example: e.g. in China, the tenement rent age

22、nt charges the rent of one month as commission.mContingent compensation (权变报酬权变报酬) The compensation is made contingently（附随的） on results.Sales agents: paid an agreed-on percentage of the value of the sales they madeLawyers (in tort actions): contingent fees, if they win the case for the plaintiff, t

23、hey got some share (often 1/3) of the recovery; if they fail, no compensation.Duty to pay commissionmIf the principal negotiates and concludes the contract with the third party directly, shall he pay commission?mAgreement of agencymNo statement in agreementAgents contribution: paidNo agents contribu

24、tion: not paidDuty to pay commissionmFor the subsequent(后来的，并发的后来的，并发的) contracts? Agency contract expiresAgreement of agencyNo agreement: Procuring cause引致原因 When an agent was the primary factor in a purchase or sale, he may be entitled to compensation regardless of who eventually completes the sal

25、e.Case: commissionmFacts: 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 because he wanted to tell his wife before signing the contract. The next day, Peter quit the corporation. Two days

26、later, the buyer come and signed the contract with the principal.Case: Willis v. Champlain Cable Corp.mFacts: Willis was employed to find buyers for Haveg Industries wire products. His agency contract permitted either party to terminate the agreement on 30 days notice. In the event of such terminati

27、on, 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 any orders, Haveg terminated Williss contract. Boeings first major

28、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 during the five years following his termination.Case: Willis v. Cham

29、plain Cable Corp.mIssue: Is Willis entitled to the commissions as the procuring cause of the orders?mDecision: No. The right to commissions is dependent on the terms of the contract. Here, as the contract between them is clear and unambiguous regarding the payment of commissions, the procuring cause

30、 rule should not override the written contract.Duty to Reimburse and IndemnifymIf the agent is acting within the scope of authority The principal has a duty to reimburse(补偿) the agent for expenses; to indemnify（补偿） the agent for lossesmIf expenses or losses are caused by the agent fault The principa

31、l will not be required to reimburse or indemnifymexample: 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 company has a duty to reimburse him for his expense.Duty

32、 to keep accountsmThe principal has a duty to keep records by which the commission due the agent can be determined.mExample: an employer must keep and make available to a salesperson a record of the sales on which commissions have been earned.External RelationshipmCivil law countries rules Direct re

33、presentation Indirect representation（间接代理）mCommon law countries rules Disclosed principal (named principal) Partially disclosed principal (unnamed principal) Undisclosed principal （隐名代理）Direct representationmDefinition: agent acts with the third party in the name of principal. Show the name the prin

34、cipal Not show, but declare the existence of principalmWho has the rights and liabilities with the third party? Principal: yes Agent: noIndirect representationmDefinition: agent acts with the third party in his own name.mWho has the rights and liabilities with the third party? Agent: yes Principal:

35、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 rights and duties from agent to principalCase: direct and indirect re

36、presentationmFacts: 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 sales company. When the furniture delivered to Anna, she refuses to

37、pay by saying she doesnt like the furniture style.mIssue: Is Anna liable to take delivery and pay?mDecision: Yes. mthis is direct representation. Under direct representation, agent is free from contractual liabilities, and principal is liable for the contract.Case: direct and indirect representation

38、mFacts: 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.mIssue: 2 days later, Peter found the bicycle didnt work. Whom should Peter sue for compensation?mDecision: the store, because this is indirect representationmI

39、ssue: if Peter bought it on credit, but refused to pay later. Whom should Marry sue for compensation?mDecision: the storeExternal RelationshipmCivil law countries rules Direct representation Indirect representation（间接代理）mCommon law countries rules Disclosed principal (named principal) Partially disc

40、losed principal (unnamed principal) Undisclosed principal （隐名代理）Direct representationmDefinition: agent acts with the third party in the name of principal. Show the name the principal Not show, but declare the existence of principalmWho has the rights and liabilities with the third party? Principal:

41、 yes Agent: noIndirect representationmDefinition: agent acts with the third party in his own name.mWho has the 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

42、third party: Contract between agent and the third party Contract between agent and principal to transfer the rights and duties from agent to principalCase: direct and indirect representationmFacts: Anna wants to buy a set of furniture. However, as she knows little about furniture, she authorized Bla

43、ck to buy one for her. After market investigation, Black signed contract in the name of Anna with a furniture sales company. When the furniture delivered to Anna, she refuses to pay by saying she doesnt like the furniture style.mIssue: Is Anna liable to take delivery and pay?mDecision: Yes. mthis is

44、 direct representation. Under direct representation, agent is free from contractual liabilities, and principal is liable for the contract.Case: direct and indirect representationmFacts: Marry put her bicycle in a store and authorized the store to sell it. The store sold it to Peter but didnt tell hi

45、m it was of Marry.mIssue: 2 days later, Peter found the bicycle didnt work. Whom should Peter sue for compensation?mDecision: the store, because this is indirect representationmIssue: if Peter bought it on credit, but refused to pay later. Whom should Marry sue for compensation?mDecision: the storeD

46、isclosed Principal (named principal)mDefinition: a principal whose existence and identity are known to the third partymWho has the rights and liabilities of contract? PrincipalmAgent: drops outPartially Disclosed Principal(unnamed principal)mDefinition: the agent only discloses the existence, but no

47、t the name, of his principalmWho has rights and liabilities of contract? PrincipalUndisclosed principalmDefinition: Both the existence and identity of principal is unknown to the third party.mWho has the rights and liabilities of contract? Agent: liable Principal: has the right to intervene, claim a

48、nd sue the third party directly The third party has an option: elect to hold liable and sue either the principal or the agentComparison: civil law and common lawmDirect representation in civil law system and disclosed and partially disclosed principal in common law system The same. mIndirect representation and undisclosed principal Common point: agent signs contract in his own name, but not the principals namecivil law and common lawmDifference: