AGENCY

Nota:

• Agency Structure  1. Do the Regulations (1&2) apply? 2. What is the contractual position? 3. What is the position under the Regs? 4. Is there a possible defence or derogation? 5. What is the basis of quantifying claim? (commission and pay off) 6. Any additional requirements(restraint order)?

1. 2. What is the Contractual position?
   1. what does it say in the contract?
2. 1. Do the Regs 1&2 apply?

   Nota:

   • 1. Are activities within GB? 2. Is A a commercial Agent? R2(1) 3. Do any exclusions apply?  4. Are A's activities secondary? if YES- agreement must comply 
   1. Reg Text Book 472 -482
3. 3. What is the position under the Reg?
4. 4. Is there a possible defence or derrogation?
5. Authority
   1. Implied
      1. If A regularly exceeds authority and P does nothing, amounts to implied variation
   2. Actual
      1. From agreement /implied into agreement
   3. Apparent
      1. P held out A as having authority and 3rd party reliance
      2. if P is bound to 3rd party where A should not have entered into the contract, : claim against A for exceeding authority. If P is not bound: 3rd party Principal may claim against A for breach of warranty of authrity
6. Duties Commercial Agents(CD) Regs 1993
   1. Agent
      1. negotiate to also mean developing goodwill
      2. R3(1)look after interests of principle and act dutifully and good faith
      3. R3(2)comply reasonable instructions
   2. Principal
      1. R4(1)act dutifully and good faith
      2. R4(2)&(3)notify agent within a reasonable period if valye of commercial transactions will be lower
      3. R15 duty to give minimum period of notice to terminate
7. Termination p127
   1. R15(2)Notice Period
      1. minimum notice 1 month=1st year 2 month=2nd year 3 month=3rd and subsequent yrs
   2. Termination Payment 'pay off R17
      1. Indemnity

         Nota:

         • Court has to assess the benefit from P from terminating the agency by looking at work done. R17(4) express indemnity provision 
         1. Based on German Laws
         2. Limit of 1 year comission
      2. Compensation p128
         1. calculated on the value of the agency including good will
8. Derogation/Defences
   1. R17(9) claim must be notified within 1 year R18(a) agent cannot claim if P terminates agreement due to A's repudiatory breach R18(b)A terminates the agency due to P's default or repudiatory breach or on grounds of age, illness or retirement. R18(c) if A assigns to 3rd party Reg 19 parites cannot contract out of provisions
9. Commission/Remuneration
   1. R7- agent's right to commission during agency
   2. R8-entitled to post-termination commission
   3. R9-if new agent appointed, R7 anew agent given commision same transaction
   4. R10-when commission due and paid

      Nota:

      • Payment due : 3 options, payment will become due at the latest when the customer 'executes' its transaction  Payment made: latest at the end of th emonth following the quarter that it is due. 
   5. R12- agent entitled to statement of commission
   6. Agent entitled to commission even if sold by principal in his territory