Evolution Of The Commercial Agent

Author:Michelle Buddecke
Position:BCL II. The author wishes to thank Fidelma White of the Law Faculty in UCC for her help and input on an earlier draft of this work. All errors remain the author's own
Cork Online Law R eview 2007 13
Buddecke, Evolut ion of the Commercial
qui facit per alium, facit per se: the Evolution of the Commercial Agent
Michelle Buddecke*
The growth of the law of agen cy, both in volume and sophistication, has
sought to keep pace with the expansion and development of
contemporary commerce. 1
The law of agency has had for centuries a special place in the Law as
one of the only exceptions to the sacred doctrine of privity. According to basic
notions of contract law, a contract cannot confer rights or impose obligations
on any legal or natural person not a party to it. While in theory this would be
an ideal concept, the commercial world is immensely complex and the
doctrine of privity can be restrictive in modern commercial practice.
It is for this reason that the use of agency agreements has become a
common and contemporary solution to growing business demands. However,
while the use of agents has grown, so too have the laws surrounding agency.
From the common law in the UK and Ireland to new European ideologies, the
law of agency, in a strictly commercial context, has seen a dramatic shift in its
fundament components.
This article seeks to address the evolution of the law relating to
commercial agents from their humble beginnings in the common law. It will
include the rights and obligations of agents and the strictly implied duties
imposed upon them and the requirements of authority. A comparison is then
made with the law at present as altered by the introduction of the European
Communities (Commercial Agents) Regulations 19942 and 1997, 3 passed to
implement the EC Directive on Self Employed Commercial Agents. 4
The implementation of the Regulations transformed how the law of
agency operates within a commercial context. The common law theme of
freedom of contract was no longer a priority in commercial agency
agreements5 and new ideologies based on French6 and German law7 were
introduced to harmonise the common market8 within the European Union.
* BCL II. The autho r wishes to thank Fidelma White o f the Law Faculty in UCC for her h elp
and input on an ea rlier draft of this work. All errors remain the author's own.
1 Markesinis & Mun dy, An outline of the Law of Agen cy, 4th ed, (London: Butterworth s, 1998)
at p.5
2 SI No. 33 of 1994 [hereinafter ‘the Regulations’]
3 SI No. 31 of 1997
4 86/653/EEC [198 6] OJ L 382/17 (hereinafter ‘the D irective’)
5 Reynolds, Bowste ad & Reynolds on Agency, 17th ed , (London: Sweet & Maxwell, 200 1) at
6 Randolph and Da vey, A guide to commercial Agent s' regulations, (Oxford: Hart, 200 2) at
7 ibid. at p.107 - 121
8 See: Article 1(1) o f the Directive

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