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Front Matter Cambridge University Press 978-0-521-86388-9 - The Unauthorised Agent: Perspectives from European and Comparative Law Edited by Danny Busch and Laura J. Macgregor Frontmatter More information THE UNAUTHORISED AGENT The focus of this book, the legal situation created when an agent acts without authority, is one of the most important issues in agency law. The analysis is divided into three sections: apparent authority, ratification and the liability of the falsus procurator. Adopting a unique comparative perspective, the contributions are drawn from many different legal sys- tems, providing the opportunity for analysis of the European common law/civil law divide. The analysis extends beyond Europe, however, taking into account the mixed legal system of South Africa, as well as the United States. Finally, there is a useful consideration of the Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts 2004. This book will be an invaluable guide for those interested in the study of comparative law, international practitioners and those interested in the harmonisation of European Private Law. danny busch is an attorney-at-law with De Brauw Blackstone Westbroek, Amsterdam, and a Senior Research Fellow in the Business & Law Research Centre, University of Nijmegen. laura j. macgregor is a Senior Lecturer and Director of the Edinburgh Centre for Commercial Law at the Law School, Edinburgh University. © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-86388-9 - The Unauthorised Agent: Perspectives from European and Comparative Law Edited by Danny Busch and Laura J. Macgregor Frontmatter More information THE UNAUTHORISED AGENT Perspectives from European and Comparative Law Edited by DANNY BUSCH AND LAURA J. MACGREGOR © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-86388-9 - The Unauthorised Agent: Perspectives from European and Comparative Law Edited by Danny Busch and Laura J. Macgregor Frontmatter More information cambridge university press Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521863889 © Cambridge University Press 2009 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2009 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library ISBN 978-0-521-86388-9 hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-86388-9 - The Unauthorised Agent: Perspectives from European and Comparative Law Edited by Danny Busch and Laura J. Macgregor Frontmatter More information TABLE OF CONTENTS List of contributors page vii Foreword ix Preface xi Abbreviations xiii Table of cases xix 1. Introduction (danny busch and laura macgregor) 1 PART 1 The civilian legal systems 15 2. Unauthorised agency in French law (severine´ saintier) 17 3. Unauthorised agency in Belgian law (ilse samoy) 61 4. Unauthorised agency in German law (martin schmidt-kessel and ana baide) 100 5. Unauthorised agency in Dutch law (danny busch) 136 PART 2 The common law 183 6. Unauthorised agency in English law (cheng-han tan) 185 7. The Restatement (Third) of Agency and the unauthorised agent in US law (deborah a. demott) 219 v © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-86388-9 - The Unauthorised Agent: Perspectives from European and Comparative Law Edited by Danny Busch and Laura J. Macgregor Frontmatter More information vi table of contents 8. Unauthorised agency, the American Restatements and other common law countries (francis reynolds) 245 PART 3 Mixed legal systems 259 9. Unauthorised agency in Scots law (laura macgregor) 261 10. Unauthorised agency in South African law (david yuill) 300 PART 4 International ‘codes’ 339 11. Unauthorised agency in the Principles of European Contract Law (danny busch) 341 12. Unauthorised agency in the UNIDROIT Principles of International Commercial Contracts 2004 (danny busch) 362 PART 5 Conclusions 383 13. Comparative law evaluation (danny busch and laura macgregor) 385 14. Comparative conclusions (danny busch and laura macgregor) 439 Bibliography 449 Index 465 © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-86388-9 - The Unauthorised Agent: Perspectives from European and Comparative Law Edited by Danny Busch and Laura J. Macgregor Frontmatter More information LIST OF CONTRIBUTORS ana b. baide, llb, ba(hons) Barrister and Solicitor of the High Court of New Zealand, Solicitor, Russell McVeagh dr danny busch m. jur. (oxon) Attorney-at-law, De Brauw Blackstone Westbroek, Amsterdam Senior Research Fellow, Business & Law Research Centre, University of Nijmegen professor deborah a. demott David F. Cavers Professor of Law, Duke University School of Law laura j. macgregor Senior Lecturer in Commercial Law Director, Edinburgh Centre for Commercial Law, University of Edinburgh professor francis reynolds, qc (hon.), dcl, fba Honorary Bencher of Inner Temple Professor of Law Emeritus in the University of Oxford Emeritus Fellow of Worcester College Oxford dr severine´ saintier Senior Lecturer, Sheffield University dr ilse samoy Postdoctoral Fellow of the Research Foundation – Flanders K. U. Leuven professor dr iur martin schmidt-kessel European Legal Studies Institute, University of Osnabrück, Dean of the Osnabrück Law Faculty professor tan cheng-han Dean, Faculty of Law, National University of Singapore david yuill Attorney, Bowman Gilfillan, Inc., Johannesburg vii © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-86388-9 - The Unauthorised Agent: Perspectives from European and Comparative Law Edited by Danny Busch and Laura J. Macgregor Frontmatter More information FOREWORD If A, purporting to act as the agent of a principal (P), makes a contract withathirdparty(TP)onbehalfofPbutwithouttheauthorityof P, what are the legal consequences for TP, and P, and A? That is the problem lying at the heart of this book. Needless to say, the answer depends on the facts and on the legal system within which the questions are asked. It may matter whether P has put forward A as his agent, or whether he has ratified A’s unauthorised conduct. It may be relevant whether A is himself liable. These are the specific issues the authors have chosen to address. This is a model comparative study, for two reasons in particular. First, the editors have cast their net widely, embracing four civilian legal systems (those of France, Belgium, Germany and the Netherlands), two common law systems (England and the United States), two mixed legal systems (Scotland and South Africa) and two international legal models (The Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts). The breadth of this coverage makes for an unusually illuminating comparison. But, sec- ondly, the editors and the authors have co-operated to concentrate on the topics chosen for attention, giving an intensity of focus which would be lost if the authors had embarked on more general expositions of the law of agency under the various systems considered. This interesting and valuable book will, I hope, influence the analysis and development of the law in this significant commercial area, both by legislators and judges. Tom Bingham House of Lords 3 July 2008 ix © Cambridge University Press www.cambridge.org Cambridge University Press 978-0-521-86388-9 - The Unauthorised Agent: Perspectives from European and Comparative Law Edited by Danny Busch and Laura J. Macgregor Frontmatter More information PREFACE The idea for this book was conceived in a café in the beautiful surround- ings of Trento, Italy. The editors had come to the city to participate in a European project, the Common Core of European Private Law. They discovered a common interest in the law of agency, and began to discuss the possibility of publishing a comparative book. It was therefore in those magnificent surroundings, and in an atmosphere of discussion of the harmonisation of European private law, that the idea for the book took shape. Several years later, our project has come to fruition. We would like to thank, above all, the contributors of the national chapters, not only for their excellent chapters, but also for their patience in the face of the challenges which comparative projects of this type tend to face. Co-ordinating different chapters on a number of legal systems is not an easy task. Thanks must also go to Finola O’Sullivan of Cambridge University Press for her patience and support throughout the project. We would also like to express our sincere thanks to Professor Francis Reynolds. Not only did he provide an invaluable chapter bridging the gap between the English common law and the US Restatement (Third) on Agency, but he also acted as an ‘honorary
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