The
importance in the classification of agents lies in the fact that it helps to
determine the extent to which a principal may be made liable for the unauthorisation
acts of his agent. There are different classifications of agents; they may be
classified into the following:
A.
Classification
According to the Extent of the Principal’s Right of Control and the Nature of
the Acts to be Performed by the Agents:
General and Special Agents
Agents
are classified as either “general” or “special” agents. The primary distinction
between the two types lies in the nature of the authority given or accorded to
each and the extent to which there exercise affects the position of the
principal.
A
General Agent is one who is authorized to act for and on behalf of his
principal in all his affairs in connection with a particular kind of
business, trade or profession or who represents him in the ordinary course of his own trade, business or profession,
as agent.
An
example of a general agent is a director of a
limited liability company who
acts for the purpose of the company’s business. In the same vein, a Solicitor,
broker or auctioneer who is engaged to
perform in the ordinary course of his own business is a general agent of
his employer in relation to that employment.
A
special agent on the other hand is one authorized to act for and on behalf of
his principal on or for special occasion. Such an agent may also be required to
handle a particular transaction or to do a specific act which is not within the
ordinary course of his trade, business or profession. An example of this is a
dealer in goods taken on hire- purchase for the purpose of executing the
necessary hire-purchase documents, paying the initial deposits, taking delivery
of the goods and in some cases receiving the periodic payments.
Distinction between General and Special
Agents
The
distinguishing feature between the two classes of agents lies in the nature and
character of the authority given or accorded and its scope in relation to third
parties. In this
connection, the court observed in BULLER
V MAPLES (1869)9 Wall 766 that: “The purpose of (a special agency) is a
single transaction or a transaction with designated persons …. Authority to buy
for the principal a single article of merchandise by one contract, or to buy several articles
from a person named, is a special agency. But authority to make purchase from any persons with whom the
agent may choose to deal, or to make an indefinite number of purchases is a
general agency”.
B.
Classification
in Terms of the Particular Functions to be Performed by the Agents:
Mercantile Agents
A
mercantile agent is an agent having in the course of his business, as such
agent, authority to sell or to consign goods for the purpose of sale, or to buy goods or to raise money on the
security of goods. In essence, when one is dealing with a mercantile agent, it
becomes pertinent to enquire whether in the “customary course of the agent’s
business he has authority to sell, consign for sale or to buy or raise money
on the
security of goods in his possession as such agent. This is so because
there are many kinds of agents who receive or are in possession of goods, yet
it is not their duty to sale or consign them for sale or to raise money on
them. It is important therefore, that
when one is dealing with an agent
in possession of goods, one has to consider what sort agent he is and what his
customary course of business wound be when he is getting in the capacity of an
agent.
In OPPENHIEMER V
ATTENBOROUGH (1708) 1
K.B 221, a distinction between “customary case of business
“and “ordinary course of business” by
LORD BUCKLEY. According to the learned judge, a customary course of business
speaks of the arrangement made between the owner of goods and his agent. It
contemplates that the principal has given possession of the goods to the agent
in the course of business which the
principal knows or
believes the agent
carries on as a mercantile
agent. It deals with the situation under which the agent gets his authority.
On the
other hand, in ordinary course of business, has to do with the stage at which the agent is going to deal
with the goods in his possession with reference to some other person.
There
are three types of mercantile agents. These are Factors, Brokers and Del Credere Agents.
Factors
The
term “Factor” has not been defined in any statue book, both foreign and local.
However, under the common law it has been defined as referring to a mercantile
agent who has been entrusted with the
possession of goods for sale only. In BARRING V CORRIE (1818)2 B & AID. 137, Abott C. J., described a
factor as a person to whom goods are consigned for sale by a merchant residing
abroad or at a distance away from the place of sale and who normally sells in
his own name without disclosing that of his principal.
This
definition was qualified in STEVENS V BILLER (1884)25 CH. D. 31 where it was
held that an agent does not loose his character of factor by reason of his
acting under special instruction from
his principal to sell the goods at a particular price and to
sell in the principal’s name.
Brokers
A
broker is a mercantile agent who, in the ordinary course of his
business is employed to make contact with third parties for the purchase of
goods, or property or for the sale of his principal’s goods or property of which he is not entrusted with possession
or document of title thereto. He has been described under the common law as an
agent employed to make bargains and contact between persons in matter of
trade, commerce and navigation. He is a mere negotiator between such
persons with no possession of the goods. He lacks the power or authority to
determine whether the goods belong to the buyer or seller
and no legal or power to
determine whether the goods should be delivered to the one or be kept by the
other.
In
essence, a factor is not entrusted with the possession of the goods and has
authority to sell them in his own right or name possession or control of the
goods of the principal by the factor distinguishes him from a broker and he is personally liable when
contracting for a foreign principal, while the broker incures no personal
liability if he does not exceed his authority or instruction.
Del Credere Agent
A del
credere agent is defined as one who, in consideration of extra remuneration called
a del credere commission, guarantees
to his principal that third
parties with whom he enters into contract for and on behalf of the principal
shall duly pay any sums becoming due
under those contracts. The element of extra remuneration by way of del
credere commission is indispensable to the establishment of a del
credere agency and it is this feature that mainly distinguishes it from
any other agent.
Therefore,
where there are no words in an agency contract from which it can be held that a
higher reward is being paid to the agent in consideration of his assuming
liability for any amounts due from third parties and there is nothing in the
course of conduct between te agent and the principal from which such arrangement
can be inferred, the agent is not in del credere agent.
No comments:
Post a Comment
Leave your comment below