Please enable JavaScript.
Coggle requires JavaScript to display documents.
Relations between agent and third party (Tort (Negligent misrepresentation…
Relations between agent and third party
Contract
Disclosed Principal
where an agent makes a contract on behalf of disclosed P
contract is between P and 3p only and agent cannot sue or be sued on it by 3p
liable if construction of contract
objective intention - agent should be liable
doctrine of merger and election = both p and agent liable - 3p can gen sue only one of them
3p already obtained judgement against one then disbarred from obtaining judgement against other
no judgement yet ; clear and unequivocal election and full knowledge of facts and knows identity of p
not apply where 3p has separate cause of action or p and agent are jointly or severally liable or one party not liable at all
agents signs contract in his own name or that is liable on it along or in exclusion of P
P can only sue on contract made with apparent authority of agent if he ratifies the act but can be sued regardless of ratification
Undisclosed Principal
contract would be between agent and 3p & both can sue and be sued on it
P can intervene and be liable on contract
.
purports to act on behalf of another
Railton v Hodgson -
actually acting on own behalf and is personally liable
not clear if he can enforce it against 3p
Rayner v Grote -
3p continues with contract after becoming aware of the true situation - A can enforce it
if identity of p was a material factor - agent not permitted to take over contract as P and enforce it
Harper v Vigers bros -
the court have held agent can enforce contract against 3p even where evidence exists which suggests that 3p would have not contracted has he known the agent was in fact P
P does not exist
pre incorporation contracts - promoters are personally liable. can sue and be sued on it
company once incorporated cannot ratify the contract. must enter new one
Foreign Principal
agent personally liable and cannot make P (named or unnamed) privy to the contract
presumption rebutted when contrary intention shown like written contract between P and agent
Custom
custom limited where its in conflict with written contract
Collateral contract
court hold separate collateral contract exists between agent and 3p upon which either P can be liable
usually contract of warranty of authority
Warranty of Authority
agent did not in fact have the authority which he represented to have = breach of warranty of authority
3p can commence proceedings against him - claim damges
put 3p in position he would have been has the warranty been good
Simons v Patchett-
damages assessed on date of breach but could differ
Collen v Wright -
agent acting innocently not relevant
liability in contract strict - no proof of fault
implied warranty?
not where 3p knew or ought to have know agent lacked authority
agent disclaims authority
apparent authority exists - sue P so agent = nominal losses
Tort
acting in course of employment - P liable
3p can sue P or agent
deceit/fraud -
false representation made knowingly or without belief in its truth or recklessly careless as to whether true or false
deliberate or reckless representation of authority
P knowledge or recklessness not attributed to agent
agents repeats P statement without knowing its false he would not be liable in deceit
Negligent misrepresentation
Hedley byrne v Heller
duty of care needed
undertakes to apply special skill
3p relies
no need for contract
Misrepresentation Act 1967 - liability only on contract
Conversion -
person intentionally deals with goods in a manner that's inconsistent with another person's possession or serves in a way to deny another person's right to immediate possession of the goods
unless dealing authorised by that 3p.
Cochrane v Rymill -
agent could be liable even if he obtained goods from P and reasonably believed that P was true owner of the goods