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)?
2. What is the Contractual position?
what does it say in the contract?
1. Do the Regs 1&2 apply?
Annotations:
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
Reg Text Book 472 -482
3. What is the position under the Reg?
4. Is there a possible defence or derrogation?
Authority
Implied
If A regularly exceeds authority and P does nothing, amounts to implied
variation
Actual
From agreement /implied into agreement
Apparent
P held out A as having authority and 3rd party reliance
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
Duties Commercial Agents(CD) Regs 1993
Agent
negotiate to also mean developing goodwill
R3(1)look after interests of principle and act dutifully and good faith
R3(2)comply reasonable instructions
Principal
R4(1)act dutifully and good faith
R4(2)&(3)notify agent within a reasonable period if valye of
commercial transactions will be lower
R15 duty to give minimum period of notice to terminate
Termination p127
R15(2)Notice Period
minimum notice 1 month=1st year
2 month=2nd year 3 month=3rd
and subsequent yrs
Termination Payment 'pay off R17
Indemnity
Annotations:
Court has to assess the benefit from P from terminating the agency by looking at work done.
R17(4) express indemnity provision
Based on German Laws
Limit of 1 year comission
Compensation p128
calculated on the value of the agency
including good will
Derogation/Defences
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
Commission/Remuneration
R7- agent's right to commission during agency
R8-entitled to post-termination commission
R9-if new agent appointed, R7 anew agent given commision same transaction
R10-when commission due and paid
Annotations:
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.
R12- agent entitled to statement of commission
Agent entitled to commission even if sold
by principal in his territory