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Undisclosed agent: Difference between revisions
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This makes sense where the [[contract]] involves property belonging to the [[undisclosed principal]], such as the sale of a unique asset. Here the [[agent]] has no right to deal with that asset ''at all'' except as an agent — [[nemo dat quod non habet]] — so for the {{tag|contract}} to be meaningful for an innocent purchaser, the law must recognise some agency. | This makes sense where the [[contract]] involves property belonging to the [[undisclosed principal]], such as the sale of a unique asset. Here the [[agent]] has no right to deal with that asset ''at all'' except as an agent — [[nemo dat quod non habet]] — so for the {{tag|contract}} to be meaningful for an innocent purchaser, the law must recognise some agency. | ||
Amwell J — a bear with little brain and even less persuasive impact on the courts of England and Wales — says this is all pap, and insists an [[agent]] who neglects to mention {{sex|his}} agency at the time of striking a bargain is simply a principal (and a bounder). If you want authority for that statement, take yourself back to your very first contract law lecture, the one which outlined the essential ingredients of a bargain: [[offer]], [[acceptance]] and [[consideration]]. The terms, as offered and accepted, bind. If the “[[agent]]” made no mention of his “agency”, it is not a term of the contract, and he is yours, fully liable as principal, to throw into the snarling teeth of the common law of contract. It would simply not do if an agent were able to avoid liability by subsequently announcing some other poor fellow who should carry the can. | [[Amwell J]] — a bear with little brain and even less persuasive impact on the courts of England and Wales — says this is all pap, and insists an [[agent]] who neglects to mention {{sex|his}} agency at the time of striking a bargain is simply a principal (and a bounder). If you want authority for that statement, take yourself back to your very first contract law lecture, the one which outlined the essential ingredients of a bargain: [[offer]], [[acceptance]] and [[consideration]]. The terms, as offered and accepted, bind. If the “[[agent]]” made no mention of his “agency”, it is not a term of the contract, and he is yours, fully liable as principal, to throw into the snarling teeth of the common law of contract. It would simply not do if an agent were able to avoid liability by subsequently announcing some other poor fellow who should carry the can. | ||
If such a benighted real [[principal]] does subsequently emerge, it would have to acknowledge the purported agency, and the counterparty would have to accept it, to let the agent off the hook. That would be some kind of [[novation]]. | If such a benighted real [[principal]] does subsequently emerge, it would have to acknowledge the purported agency, and the counterparty would have to accept it, to let the agent off the hook. That would be some kind of [[novation]]. | ||
The case law seems to have developed the other way around — to enable an aggrieved principal who actually did exist, to seek performance of the bargain from the third party. But again, its action should not be against the [[ipso facto]] inadvertent third party but against the delinquent agent. and if the agent should be of insufficient means? Well — tough. It was the principal who decided to employ him. | |||
''[[Parvos vetus dominarum legis malus faciunt]]'' | ''[[Parvos vetus dominarum legis malus faciunt]]'' | ||