Year: 1968
Type: article
Abstract: THE problem of the intermediary in commercial transactions is one that has created difficulties for many centuries in establishing a suitable legal formula to reflect commercial necessity and the current pattern of economic relationships.'I n other wards, the law has found considerable difficulty in developing separate categories of agent, which although quite distinct in the commercial sense, have no special provision made for them by the law, and to ascertain the law that governs them, one is forced back upon the general principles of the law of agency which often bear little relevance to the situation in question.Some categories, such as the broker, have been recognised as such in both the common law and in continental law systems, and given a definite legal statup as an intermediary acting on behalf of both parties to a contract of sale and purchase in respect of commodities or services.aBeyond that, however, as far as the common law is concerned, there has been a remarkable degree of reluctance to acknowledge that a rigid division of parties into either " principal " or " agent," in the strict legal sense of the words, does not offer a suitable framework for many commercial relationships.Many commercial intermediaries often do not fit easily into the simple classification of an " agent."Some may, in the legal sense, be both principal and agent simultaneously, while others through the complexity of their relationships may prove incapable of being allocated either status without a grave disregard of their true commercial position.Where there has been considerable case-law, as in the field of estate agency, the law has sometimes responded to the challenge and classified in some detail the special usages of the trade, but this has been essentially dependent on a willingness to litigate, as this provides the only medium of legal growth in a case-law 1 Commercial transactions are no reepecter of legal jurisdictions and national boundaries, and it i R often only possible to find the exact nature of a commercial transaction from a study of practice and law relating to more than one country.For this reason a comparative study of the commercial law of the Commonwealth countries subject to the common law is long overdue, and a classification of combined precedents in purely case-law subjects, such as agency, would certainly be of considerable value, bearing in mind the paucity of case-law in individual countries.The question ia essentially a complementary one to the problem of conflict Isms-see Falconbridge, Conflict of l,azus, Chap.VIII.* See Bow.rtend on A q e ?i q / , art. 2 ; Aincricnn Restatement, Agency, 8 . 1 (a).
Source: Modern Law Review
Author: D. J. Hill
Institution: Ahmadu Bello University
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: bronze
OpenAlex ID: W1997636977