Commercial Law
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Commercial Law - Leaderboard
Commercial Law - Details
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| What is an agent personally liable? (termination) | Where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked > Seymour v Bridge |
| What is an agent personally liable? (termination) | Where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked > Seymour v Bridge |
| What is an agent personally liable? (termination) | Where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked > Seymour v Bridge |
| What is an agent personally liable? (termination) | Where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked > Seymour v Bridge |
| Which legislation (and section) gives the definition for a commercial agent? | The Commercial Agents (Council Directive) Regulations 1993, s.2 (1) |
| What are the four ways that agency can be created? | Agreement Ratification Ostensible/apparent authority Necessity |
| Which ways can agreement be created? | Through contract - whether written or orally agreed through lack of capacity from the agent or principal the agent is to act gratuitously |
| What does express actual authority require? (agreement) | That an agent must ask for clarification when acting under a principal. the agent will not be able to rely on the vagueness of the principal's instructions. |
| How can implied authority be established? (agreement) | Through relationships > Waugh v Clifford & Sons - implied relationship between a solicitor and client |
| What are the seven conditions for ratification to be created? | 1 the agent must purport to act for a named or identifiable principal 2 the principal must have actually existed and been ascertainable at the time the contract was made 3 the principal must have the necessary capacity to make that contract 4 it must be timely 5 nullities cannot be ratified 6 the principal must have full knowledge of the facts 7 ratification can be created orally or written, but need not be communicated to the TP |
| What is ratification? | A principal who has not given their authority to an agent, but may want to enter the contract the agent has proposed to them. > Wilson v Tumman |
| Yes or no: if the agent makes a contract with the third party, which is yet to be ratified by the principal, and the TP decides to withdraw, is the contract still valid? (ratification) | Yes, the third party will still be bound by the contract made. this is due to the TP agreeing to deal with the principal, but they have yet to have accepted it > Bolton v Lambert |
| What are the key cases that principals must have capacity to enter into a contract? (ratification) | Firth v Staines - the agent must not exceed their given authority or where they were given no authority at all Bird v Brown - the principal must be capable of doing the act at the time |
| What is the key case that a principal must be named or identified? (ratification) | > Keighley, Maxsted & Co. v. Durant 1901 - agent used their name on the delivery rather than the principals. principal ratified and later decided not to take the delivery. since it was in the name Durant, the agent could not sue |
| Why must principals be in existence? (ratification) | Promoters of companies enter into contracts before the company exists, creating complications. > Kelner v Baxter |
| True or false: when there is not fixed time limit on performance, ratification is based on 'reasonable time' (ratification) | True, when the principal has notice the act will be performed, this will have to be done in reasonable time |
| Yes or no: can a contract be made valid with ratification when its void in law? | No, since this is a nullity |
| What is ostensible authority? | Where a principal gives a third party the impression that the agent is authorised to act as one, but actually is not, the principal will still be bound by the contract |
| What are the four ingredients for ostensible authority? | A representation must have been made that the person had authority to act as agent. The representation must be one of fact, not law. The representation must have been made by the principal to the third party. The third party must have relied on the representation. |
| What is the key case for ostensible authority? | Summers v Solomon - D owned a jeweller's shop. he employed a manager and as part of the role, they ordered jewellery for the shop. the manager left the role, and the plaintiff was employed. they believed that as part of their job, they had to order jewellery for the shop. D did not inform the plaintiff that he was taking away that part of the job and absconded the jewellery. the D was liable as he had not informed the plaintiff and the plaintiff was basing the job off previous authority. |
| How is authority as an agent established? (ostensible) | Expressed or implied, the third party must believe the agent is representing the principal. the third party can also not consider the agent as the principal |
| What is the key case for representation being relied upon for the agency? (ostensible) | The 'Ocean Frost' 1986 |
| True or false: the third party believing that the agent who represented the principal can be made by anyone (ostensible) | False, only the principal can give the third party the impression that the agent works for them |
| True or false: representation must be one of fact and not law | True, A misunderstanding by a third party as to the legal effect of some statement by the principal does not affect the contractual position |
| What is necessity? | Where an agency will be created due to the perishing of goods and necessity of the situation |
| What is the key case for necessity? | Couturier v Hastie |
| What conditions must necessity be under? | 1 The action was the only one practicable in the circumstances: Prager v. Blatspiel, Stamp & Heacock Ltd 1924. So a master faced with perishing goods has the right to dock at the nearest port and sell the goods for the best price he can get, as in Couturier v. Hastie. 2 The carrier or master had no opportunity at the time to obtain instructions from the owner: Springer v. Great Western Railway 1921. 3 The carrier or master acted honestly and in the interests of the owner. |
| What does Springer v Great Western Railway establish? (necessity) | That if the carrier has no time to get instructions from the owner, they are allowed to sell the produce that is going bad |
| What is termination from performance? | Where an agent is dismissed when they have performed the transaction or act the contract requires |
| What will happen if the agent continues after the contract has been terminated through performance? | The principal adopts the agents further conduct and contracts through ostensible authority. therefore the principal will have to give third parties notice in the future that the agent does not work with them. |
| What is a termination of notice and who can invoke this? | Both parties can enact it. this is simply where one party wants to terminate the agency through giving notice of their leaving. this can be done orally or through writing > The Margaret Mitchell |
| True or false: acting inconsistently with the agency's contract does not automatically terminate the agency | False, it will automatically terminate the contract > EP Nelson & Co v Rolfe |
| Yes or no: the party has to be aware that the other has passed away for the agency to end | No, the agency ends whether or not the other party is aware However, an attorney may take over and survive the death of the person |
| What does Yonge v Toynbee establish? (termination) | That if either the principal or agent is registered insane and that they are unable to give consent, then the agency is terminated |
| What does Turner v Goldsmith establish? (termination) | That agency comes to an end when the principal's business does due to closure. agents may be entitled to compensation due to the future commission they miss out on |
| How is bankruptcy dealt with in agency? (termination) | If it's the principal, then the agency is automatically terminated and if they have mutual accounts, the agent must be notified before they are tampered with > Elliot v Turquand if its the agent, then the authority is only terminated if the agent is deemed unable to perform his duties > McCall v Nunn |
| What is a non-consensual agency? how can it be terminated? | One example is apparent/ostensible authority. when the third party is notified that the principal is insane, this terminates the contract. another is necessity. agency can be terminated by simply giving the agent notice. however this is limited due to the necessity of certain situations. > Great Northern Railway Co v. Swaffield 1874 - the owner of a horse entrusted to the railway company for transport had stated that he would not be responsible for the cost of feeding and stabling the horse. When he did not collect the horse once it had arrived at its destination, the railway cared for the horse and subsequently claimed its costs for feed and stabling. The court held that the railway was ‘… bound from ordinary feelings of humanity to keep the horse safely and feed him’. |
| What type of ways can consensual agencies be terminated? | Performance notice inconsistent conduct insanity death cessation or transfer of business bankruptcy |
| What are the types of non-termination agencies? | Irrevocable or enduring powers of attorney authorities coupled with interests where the agent is personally liable |
| What is an agency coupled with an interest? (termination) | Where an authority is granted by deed or for valuable consideration, and the purpose is to protect an interest which the agent has independently of the agency (in other words, not to secure his commission, for instance), then the authority is irrevocable, and the agency cannot be terminated prematurely |
| What is an agent personally liable? (termination) | Where the agent will become personally liable in acting for the agency (such as buying products) then the agency cannot be revoked > Seymour v Bridge |
| What are the two fundamental statutes for sale of goods? | Sale of Goods Act 1979 Consumer Rights Act 2015 |
| What are goods? what are things in action? | Good refers to specific physical products things in action means a legal right to sue for something |
| What does section 2 (1) of the SOGA state? | A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price goods transfer money consideration |
| What is not a personal chattel? | Money and things in action |
| What are the main cases for monetary consideration? | > Chappell & Co Ltd v. Nestlé Co Ltd 1960 - wrappers were considered a monetary consideration > Aldridge v. Johnson - an agreement to sell 52 bullocks in exchange for 100 quarters (one and a quarter tons) of barley with the difference in market value to be made up in money was treated without argument as a sale of goods |
| What is an agreement to sell? what is a sale? what is the difference? | Agreement to sell: when the contract is made and it is stated the goods will pass at some later point, then it is an agreement to sell sale: at the time the contract is made, the goods are transferred to make it a sale besides the property transferring later, the remedies are affected by which contract of sale it is |
| What are the different types of goods? | Existing goods future goods specific goods unascertained goods ascertained goods |
| What are existing goods? which section? | Existing goods are goods that already exist at the time the contract is made and are ‘owned or possessed by the seller’ SOGA s 5 (1) |
| What are future goods? which sections? | Goods to be manufactured or acquired by him after the making of the contract of sale SOGA 5 (1) SOGA 5 (2): the contract acts as an agreement to sell when future goods are considered |
| What are specific goods? which section? | Goods identified and agreed upon at the time a contract of sale is made SOGA s 61 > Howell v Coupland 1876 - the defendant agreed to sell 200 tons of potatoes to the claimant on this specific plot of land. on this specific farm. Due to disease, they could only give 80 tons of potatoes. Claimant brought action. They won due to the claimant wanting those specific potatoes, and not just any the defendant could get their hands on |
| What are unascertained and ascertained goods? | Unascertained goods are any goods not identified or agreed upon at the time the contract of sale is made. This is due to the buyer going off description, rather than a specific good. For goods to be ascertained, they must be ascertained in the process when someone possesses your goods. |
| What are the seller's duties? | Duty to deliver duty to pass good title duty to supply goods of the right quality duty to supply goods in the right quantity duty to supply goods at the right time |
| Which section covers the duty to deliver? | SOGA 27: It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale The legal meaning of ‘delivery’ in the sales context is a voluntary transfer of possession |
| What is the duty to pass good title? | Section 12 states that the seller ‘has a right to sell’. they must have full ownership or title to the goods > Karlshamns Oljefabriker v. Eastport Navigation Corp [1982] - a case where the seller arranges a direct transfer of property from the existing owner to the buyer, without the goods ever belonging to the seller even for a moment |
| What section governs the duty to right quality? | SOGA 14: implied there is an obligation on the seller to supply goods of ‘satisfactory quality’ |
| Which sections govern the duty to right quantity? | SOGA 30 (1) and 31 (1) 30: Where the seller delivers to the buyer a quantity of goods less than he contracted to sell, the buyer may reject them, but if the buyer accepts the goods so delivered he must pay for them at the contract rate 31: Unless otherwise agreed, the buyer of goods is not bound to accept delivery thereof by instalments |
| What does Behrend & Co Ltd v Produce Bakers Co Ltd establish? | That the buyer may reject the goods if the quantity is too little or too much this case involved the sale of several hundred tons of Egyptian cotton seed to be shipped from Alexandria to London on the Port Inglis and discharged into the buyer’s craft alongside the ship at London. Part of the quantity was discharged into the buyer’s barges, which were ready and willing to take the whole quantity. The Port Inglis then proceeded to Hull to discharge other cargo, before returning to London where she expected to discharge the rest of the cotton seed. The buyer, however, refused to accept this second delivery, and the King’s Bench Division held it was entitled to keep the earlier part-delivery but reject the second. Strangely enough, an attempt by the seller to deliver too much also entitles the buyer to reject the delivery. |
| What section governs the right to supply goods at the right time? | SOGA 10 (1): provides that time of payment is prima facie not of the essence 10 (2): in the case of all other stipulations as to time, whether they are or are not of the essence of the contract depends on the terms of the contract 29 (3): Where under the contract of sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time. |
| What does Hartley v Hymans establish? | ‘In ordinary commercial contracts for the sale of goods the rule clearly is that time is prima facie of the essence with respect to delivery’ |
| Which section governs the sale by description? | SOGA 13 (1): Where there is a contract for the sale of goods by description, there is an implied term that the goods correspond with the description. 13 (2): If the sale is by sample, as well as by description, it is not sufficient that he bulk of the goods corresponds with the sample if the goods do not also correspond with the description. |
| What does Grant v Australian Knitting Mills establish? | That even know in a shop the goods are on the counter in front of them, they are still a sale of description. a thing is sold by description, though it is specific, so long as it is sold not merely as the specific thing, but as a thing corresponding to a description, e.g. woollen undergarments, a hot-water bottle, a second-hand reaping machine, to select a few obvious illustrations. |
| What does Harlingdon & Leinster Enterprises Ltd v. Christopher Hull Fine Art Ltd establish? | That in this case, it was not a sale by description. this is due to the buyer's bringing in professional experts to carry out research and inspections and they relied on their information, not the seller's |
| What section governs the sale by sample? | SOGA 15 (1): A contract of sale is a contract for sale by sample where there is an express or implied term to that effect in the contract 15 (2)(a): the bulk will correspond with the sample in quality |
| What is a reasonable examination under the SOGA? | 15 (2)(c): this places more responsibility with the buyer than the seller. The theory is that the seller is promising something which may not meet the definition of satisfactory quality under s.14(2), but rather is something of the same quality of the sample, and it is up to the buyer whether that is what they want. |
| What are the buyer's duties? | To pay the price of the goods to take delivery of them |
| What is the duty to pay the price? what two things does it consider? | Time of payment: the buyer is normally not entitled to the goods until they have paid the price. when payment is late the seller can apply for damages from costs the seller had to pay for things such as storage or redelivery form of payment: the seller cannot anything apart from money for the price. |
| What is the duty to take delivery? | > Woolfe v Horn - the time the buyer accepts delivery is not of the essence > Sharp v Christmas - apart from perishable goods, breach allows re-sell immediately |
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| What does Behred v Produce Brokers establish? | That the buyer is entitled to the whole load in one delivery. they can reject the part that isn't delivered, and accept the part that has been delivered. |
| What does section 17 state? | That property passes when the parties intend it to. this can be drawn from the terms of the contract, conduct of the parties or circumstances of the case the goods must be specific and ascertained |
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| What does section 20 state? | The goods remain at the seller's risk until the property is transferred to the buyer. this includes delivery. |
| What does section 18 state? | Where there is no expression intentions on when property passes, there are five rules for ascertaining intention. |
| What does section 61 state? | Goods must be in a deliverable state. |
| True or false: goods can be transferred unascertained | False, they must always (apart from the one rare rule 5 in section 18) be ascertained. this is stated in section 16 |
| What is a bulk under which section? | SOGA 61 (1): ‘bulk’ means a mass or collection of goods of the same kind which— (a) is contained in a defined space or area; and (b) is such that any goods in the bulk are interchangeable with any other goods therein of the same number or quantity |
| What does nemo dat quod non habet mean? which section reinforces this? | No one can give what he/she/it does not have. s 21(1) |
| What does the Philip Head & Sons Ltd v Showfronts Ltd case establish? similar to Underwood Ltd v Burgh Castle Brick & Cement Syndicate? | The carpet delivered was not in a 'deliverable state' as it had not been fitted. similarly the condensing engine was not delivered as it was still on the rail. goods must be in a deliverable state to be delivered. |
| What does Carlos Federspiel & Co SA v. Charles Twigg & Co Ltd establish? | The appropriating act is the last act the seller performs, so if this is the case, the property has passed. this did not happen in this case |
| What does Behred v Produce Brokers establish? | That the buyer is entitled to the whole load in one delivery. they can reject the part that isn't delivered, and accept the part that has been delivered. |
| What is an action for the price? which section stipulates this? | A remedy where the buyer fails to accept the goods. this is only available when property has passed. section 49 |
| What is non-acceptance? what section does this apply to? | Where the buyer does not accept the goods, but the property has not passed as well. so the seller may claim damages. section 50 |
| What is a lien? | The right one person has over another person's property. this applies to sellers which are not paid for the property supposedly passing section 39(2) |
| What four ways are liens terminated? | 1 the buyer pays the payment 2 the seller delivers the goods to a carrier or other bailee in order that the goods be transmitted to the buyer, without reserving a right of disposal of the goods 3 the buyer or an agent of the buyer lawfully obtains possession of the goods 4 the buyer waives the lien |
| What is a stoppage in transit? | The unpaid seller has a right to stop goods in transit to the buyer |
| What are the three requirements for stoppage in transit? | The goods must be ‘in transit’ the seller must be an ‘unpaid seller’ the buyer must have become insolvent |
| What is the right of resale? which section? | Section 48 states that the unpaid seller can resell the goods if the seller exercised his lien or his right in stoppage of transit |
| What is available market place? | Where there is non-acceptance from the buyer, the seller can apply for damages in the available market, under section 50. this is calculated by the difference between the market price and the contract price. there is no definition for the available market. |
| Who is a bailor? who is a bailee? who is a sub-bailee? | A bailor is the owner of goods subject to the bailment a bailee is anyone holding the legal ownership of which belongs wholly or in part to another (the bailor) a sub-bailee is one to whom the goods have been bailed by someone who is themselves a bailee of those goods |
| True or false: the remedy for 'breach of bailment' is damages | False, there are no breaches of bailments, the usual action is a breach of contract or tort, such as negligence or trover |
| What does Coggs v Bernard establish? (case circumstances) | The plaintiff, Coggs, claimed that Bernard agreed to collect several hogsheads of brandy from a cellar and transfer them to a cellar in Water Lane in the City of London. Bernard carried out this task but he or his servants or agents were negligent and staved-in one of the casks at the delivery address, causing a large quantity of brandy to be lost. the court found for the plaintiff stating that they were negligent in their storing abilities |
| What does Coggs v Bernard establish? (types of bailment) | Depositum Locatio custodiae (or ‘hire of custody’) Commodatum Locatio et conductio Vadium - important one Locatio operis faciendi Mandatum |
| What can be bailed? | All personal property - not buildings only tangible property - not things in action or money |
| What is depositum? | The ‘bare deposit’ of goods with someone for the owner’s exclusive use. the bailee does not receive any reward for their services |
| What is location custodiae? (hire of custody) | The ‘bare deposit’ of goods with someone for the owner’s exclusive use. this is different from depositum as they receive a reward for their services. |
| What is commodatum? | Commodatum arises where the bailor lends goods to the bailee for the bailee’s benefit, such as lending a pen to your friend |
| What is locatio et conductio? | This is where the goods are let to the bailee on hire |
| What is vadium? | Where goods are pawned or pledged to someone |