AGENCY

MEANING:
In law, a relationship in which one party (the agent) acts on behalf of and under the control of another (the principal) in dealing with third parties. It has its roots in ancient servant-master relations. Agency becomes a legal issue when the agent injures or wrongs a third party. In Anglo-American law, principals are bound by and liable for the acts of such agents as stockbrokers, business agents, contractors, real-estate agents, lawyers, union representatives, managing partners, and private detectives.

DEFINITION:
1 a : the office or function of an agent b : the relationship between a principal and that person's agent. 2: the capacity, condition, or state of acting or of exerting power. 3: a person or thing through which power is exerted or an end is achieved. 4: an establishment engaged in doing business for another 5: an administrative division (as of a government).

HUMAN AGENCY:
Human agency is the capacity for human beings to make choices. It is normally contrasted to natural forces, which are causes involving only unthinking deterministic processes. In this respect, agency is subtly distinct from the concept of free will, the philosophicaldoctrine that our choices are not the product of causal chains, but are significantly free or undetermined. Human agency entails the claim that humans do in fact make decisions and enact them on the world. How humans come to make decisions, by free choice or other processes, is another big issue. The capacity of a human to act as an agent is personal to that human, though considerations of the outcomes flowing from particular acts of human agency for us and others can then be thought to invest a moral component into a given situation wherein an agent has acted, and thus to involve moral agency. If a situation is the consequence of human decision making, persons may be under a duty to apply value judgments to the consequences of their decisions, and held to

be responsible for those decisions. Human agency entitles the observer to ask should this have occurred? in a way that would be nonsensical in circumstances lacking human decisions-makers, for example, the impact of comet Shoemaker-Levy on Jupiter.It is in two types namely, o In Philosophy. o In Sociology.

IN PHILOSOPHY:
In certain philosophical traditions (particularly those established by Hegel and Marx), human agency is a collective, historical dynamic, rather than a function arising out of individual behavior. Hegel's Geist and Marx's universal class are idealist and materialist expressions of this idea of humans treated as social beings, organized to act in concert. Also look at the debate, philosophically derived in part from the works of Hume, between determinism and indeterminacy.

IN SOCIOLOGY:
Structure and agency forms an enduring core debate in sociology. Essentially the same as in the Marxist conception, "agency" refers to the capacity of individuals to act independently and to make their own free choices, whereas "structure" refers to those factors (such as social class, but also religion, gender, ethnicity, subculture, etc.) that seem to limit or influence the opportunities that individuals have.

TYPES OF AGENCY:
V a r i o u s l a b e l s h a v e b e e n u s e d t o d i s t i n g u i s h p a r t i c u l a r t yp e s o f a g e n t , thereby indicating the extent or nature of an agents powers or duties. Theya r e n o t a l w a y s o f m u c h s i g n i f i c a n c e i n p r a c t i c e , b u t s o m e o f t h e m o s t commonly used are noted here.

GENERAL OR SPECIAL AGENT:

Ageneral agent is engaged to carry out transactions which fall within thegeneral area of a trade or business. Amanaging director, or a partner, forexample, will normally have the authority to make a wide range of contractson behalf of the company or firm. Aspecial agent will be appointed for aparticular transaction and have no authority beyond that.The distinction is not, in fact, of much practical use. The concepts ofimplied and apparent authority (discussed at 10.1.2 and 10.1.3, below) aremore commonly used in modern case law to define the scope of an agentsresponsibilities. In this context, however, the fact that a

person is either ageneral or special agent may be one of the factors indicating to the world thelimitations on the agents authority.

MERCANTILE AGENT-FACTORS AND BROKERS:

Section1(1) of the Factors Act 1889 defines a mercantile agent as a person: Having in the customary course of his business as such agent authority tosell goods or consign goods for the purpose of sale, or to buy goods, or toraise money on the security of goods. This definition encompasses two types of agent recognised by the commonlaw factors and brokers.Factors are given possession of the goods which are to be sold as, forexample, when they are sent from abroad. Moreover, a factor may sell in hisown name, that is, on behalf of an undisclosed principal ( B a r i n g v C o r r i e (1818)). Brokers, by contrast never take possession of goods and never sell intheir own name. Brokers simply negotiate to bring the parties together. Thet e r m b r o k e r i s , h o w e v e r , a l s o u s e d i n r e l a t i o n t o a g e n t s w h o a r e n o t mercantile agents, such as stockbrokers or insurance brokers.

DELCREDRE AGENT:
Adelcredere agent may also be a mercantile agent. The primary use of thistype of agency is in relation to transactions for the sale of goods overseas,where the principal has some doubts that the third party will pay. The delcredere agent, in return for increased commission, agrees to indemnify theprincipal if the third party defaults (Morris v Cleasby(1816)). This type ofagency is still used on occasion, despite the fact that such situations willnowadays often be dealt with by means of documentary credits or creditguarantees.

COMMERCIAL AGENT:
The Commercial Agents (Council Directive) Regulations 1993 implement aE u r o p e a n d i r e c t i v e a i m e d a t g i v i n g g r e a t e r p r o t e c t i o n t o c o m m e r c i a l agents. These are defined in reg 2(1) as: Aself employed intermediary who has continuing authority to negotiate thesale or purchase of goods on behalf of another person (the principal), or tonegotiate and conclude the sale or purchase of goods on behalf of and in thename of that principal. The aim is to deal with independent agents who have no other relationshipwith the principal. Employees are not covered and the Regulations alsoexclude directors, partners, receivers and insolvency

practitioners.Th e a ge n t mu s t d e a l i n g o o d s f o r t h e p r i n c i p a l a n d t h i s mu s t b e t h e agents primary activity on behalf of the principal. The Regulations do not,however, apply to gratuitous agents, dealings on the commodity markets orexchanges, or Crown Agents. There is a rebuttable presumption that mailorder catalogue agencies and consumer credit agencies are not commercialagencies for these purposes (para 5 of the Schedule).The importance of identifying a commercial agent relates primarily torights on termination of the agency and this is dealt with at 9.6, below.

ESTATE AGENT:
As has been noted above, estate agents do not generally have authority toenter into contracts on behalf of their principals. There is some statutoryregulation of such agents by the Estate Agents Act 1979 and the PropertyMisdescriptions Act 1991. The former Act contains a definition of estateagency work which is also used by the 1991 Act (s1(1) of the 1979 Act). It, basically, defines such work as introducing prospective purchasers or sellersof interests in land to the agents principal and then securing the disposal or acquisition of that interest.The Act requires estate agents to keep separate client accounts and tohold clients money on trust (ss 13 and 14). The agent must also give, prior toentering into a contract, specified information as to payments which clientsw i l l h a v e t o m a k e ( s 1 8 ) a n d d i s c l o s e a n y p e r s o n a l i n t e r e s t ( s 2 1 ) . Supervision of estate agents is given to the Director General of Fair Trading.The Property Misdescriptions Act creates a criminal offence of makingfalse or misleading statements in relation to a wide range of prescribedm a t t e r s s e t o u t i n t h e A c t ( i n c l u d i n g , t h e p r i c e o r p r e v i o u s p r i c e o f a property, outlook, planning permissions and existence of right of way). Onlymaterial falsehoods are covered.