The conceptual basis of relationships consequential upon agency

Abstract

This thesis is divided into three areas. The first concerns the conceptual basis of the relationship created between a principal and a third party where the agent acts in accordance with his principal's' express or implied instructions and also reveals his agency to the third party. The historical origins of the concept of agency are briefly considered, noting the movement away from formalism, through fiction, which is translated into fact, so that the acts of the agent are treated as those of his principal, enabling the creation of a simple contractual relationship between the principal and third party, through the agent. The second part seeks to ascertain the conceptual nature of the relationship created by an agent who exceeds his principal's instructions in circumstances where the agents acts are, nevertheless, held to affect his disclosed principal's legal relations with a third party. This investigation is particularly concerned to review the traditional English approach, which confines a principal's liability to those situations in which the agent has the appearance of acting in accordance with his principal's instructions. This is demonstrated to be inadequate and the possibility of a more satisfactory theory is considered. The third part reviews the conceptual basis of the doctrine of the undisclosed principal, under which the acts of an agent acting in accordance with his principal's instructions are held to bring his principal into a legal relationship with the third party, despite the third party being unaware of the principal's existence. Research reveals that this "anomalous" doctrine is based upon sound historical foundation and that misunderstanding of its origins has led to distortion in its later application. Finally, the problem of the relationship between an undisclosed principal and third party, where the agent exceeds his principal's instructions, is considered, and the development reviewed in its conceptual and practical context.