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
• Pages: 86-98

Cork Online Law R eview 2007 13

Buddecke, Evolut ion of the Commercial

Agent

!

!

∀#

EVOLUTION OF THE COMMERCIAL AGENT

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

A INTRODUCTION

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

p.582

6 Randolph and Da vey, A guide to commercial Agent s' regulations, (Oxford: Hart, 200 2) at

p.123–138

7 ibid. at p.107 - 121

8 See: Article 1(1) o f the Directive