Introduction

The subject of Agency belongs to a comparatively re-

cent period in our law. Blackstone scarcely refers to it.

"The law of principal and agent," says Blackstone's

learned editor, Professor Hammond (Bk. I, p. 710), 4, is

derived from the canon law, and has only been intro-

duced into the common law in recent times. If the

older books of English law arc examined, no such

words as 'principal and agent' will be found in them.

Wherever any question is discussed which would now

be treated under that head, it is treated of as master

and servant. Principal and agent does not occur in

Viner's Abridgement, or those preceding it; and it is

only at the end of the eighteenth century that we find

it beginning to appear as a separate title, as yet of

very limited application."

"As late as Blackstone," says Mr. Justice Holmes

in his book on the Common Law (p. 228), "agents

appear under the general head of servants, and the

first precedents cited for the peculiar law of agents

were cases of master and servant. Blackstone's lan-

guage is worth quoting: 'There is yet a fourth species

of servants, if they may be so called, being rather in

a superior, a ministerial capacity; such as steioards,

factors, and bailiff'*: whom, however, the law considers

as servants pro tempore, with regard to such of their

acts as affect their master's or employer's property.'

(1 Comm. 427)."

Agency belongs distinctively to a commercial ag> ,

and its growth has kept pace with the progress of com-

mercial development. It furnishes the means by which

2 Introduction.

the range of individual and corporate activity is enor-

mously increased. As soon as it is conceded that one

man may be represented by another in business trans-

actions, and that he may have as many such repre-

sentatives as occasion may require, the field of commer-

cial activity is immensely widened. The modern

business man may thus be constructively present in

many places and carry on diverse and widely separated

Industries at the same time.

The fundamental maxim of Agency, both as to right

and liability, is Qui facit per alium, facit per se Тот, кто действует через другого, действует сам. Its

second great maxim, also of right and liability, refer-

ring to the time when the relation is created, is Omnis

ratihabitio retrotrahitur et mandato priori aequi-

paratur.

Agency belongs in the field of contract law. The

relation between the principal and his agent is, as will

be seen, a contractual relation, while the purpose of its

creation is to bring about contractual relations between

the principal and third persons.

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1

I It

Jl^\.

OUTLINES OF THE

LAW OF AGENCY

CHAPTER I.

DEFINITIONS AND DISTINCTIONS.

В§ 1. Agency defined.

2. Agency is a contractual

relation.

3. Can usually exist only by

assent of the principal.

4. Exceptions — Authority

created by law.

5. How agent compares with

servant.

G. Distinction usually of

little practical importance.

7. Occasionally distinction

important.

S. How agent compares with

independent contractor.

9. Agency differs from trust.

В§ 10. Agency to be distinguished

from sale.

11. Agency differs from lease.

12. The contract appointing —

Power of attorney.

13. Classification of agencies

— Actual or ostensible.

14-17. Universal, general

and special agency.

18. How to be proved.

19-23. Professional and

non-professional agents.

24-26. Distinctions be-

tween these classes of

agents.

§ 1. Agency defined. — Agency is a legal relation,

founded upon the express or implied contract of the

parties — or created by law — by virtu e of which one

party — called the Agent — is employed and authorized

to represent and act for the other, called the Principal

— in business dealings with third persons.

It Is said that agency is a "legal relation." It is unfortunate that

in our law we have no word which clearly represents the idea of

such a relation as agency or partnership and at the same time dis-

tinguishes it from other relations. The word "relation" is used in a

great many senses. We speak about parties coming into contract

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4 DEFINITIONS AND DISTINCTIONS. [§§1-2.

relations with each other, as when A and B enter into a contract.

When a tort is committed, the parties are also often said to come

into relations with each other. In this case, however, the relation,

if it be such, is purely a temporary one; it is not permanent.

On the other hand, we speak of the relation of husband and wife,

the relation of parent and child, or the relation of guardian and

ward. In these cases it is obvious that the word "relation" is used

in an entirely different sense. The idea of permanence is involved,

and, more than all, we see that here are rights, duties and liabilities

which the law rather than the act of the parties has created, and

which the parties are usually unable, by any act or agreement of

their own, to alter or diminish. To such relations, in order to dis-

tingush them from the temporary sort above referred to, the term

status or condition is often applied. Lying between the casual rela-

tions first referred to and these relations of status, are certain others,

more permanent than the first class and more open to contractual

limitation and control than the second — cases wherein the parties

have agreed to occupy certain legal relations to each other for a time

subject to their control and upon conditions largely determinable

by their agreement. The most conspicuous of these relations are

those of Agency, Master and Servant, and Partnership.

We use the term, legal relation, therefore, not to distinguish it

from illegal relations, but to indicate that this is a relation in law —

a relation which the law recognizes.

§2. Agency is a contractual relation. —Agency