One of the key distinctions in any Agency relationship is whether it is a Marketing Agency or a Sales Agency. The Marketing Agent would not have the power to enter into binding contracts on behalf of the Principal, while the Sales Agent would have such power. The Sales Agent can negotiate the terms of the contract and enter binding agreements on behalf of the Principal within the realm of the Agency. Suggesting prices usually are subject to the Principal’s approval, NFJ Services v IF Hardware.
The nature of the Agency
Another important element must be determined before entering into such a contractual relationship I.e., whether the Agency is on an exclusive, sole or non-exclusive basis.
The exclusive Agent, unlike the supplier, will be the only person permitted to sell the products on behalf of the Principal within the region. The non-exclusive Agent, on the other hand, is where the Principal may appoint other agents in the same area or market the good himself.
The Sole Agent stand in between, where the Agent has the exclusive right to sell in the region but beside the Principal himself.
Commercial Agents (Council Directive) Regulations 1993
Under reg.2(1), the regulations apply to only commercial agents who are defined as self-employed intermediaries having “continued authority” to negotiate the sale or purchase of goods or negotiate and conclude. I.e., the Marketing or Sales Agents, as explained previously.
However, in terms of having “continued authority”, The court held in P Chartering v M Zeeship that concluding one transaction will not be deemed as “continued authority”.
The Duties of the Agent and the Principal
Three main resources organise the Agent’s duties under any Agency Agreement. Regulations 1993, the Agency Agreements and the mutual obligations under common law.
- The Duties Under the 1993 Regulations
Reg 5(1) stated that the parties cannot be contracted out of Reg 3 and 4.
The Agent’s Duties:
- Reg3(1), the Agent must look after the interests of his Principal and act dutifully and in good faith;
- Reg 3(2)(a), to make proper efforts to negotiate and, where appropriate, conclude the transactions he is instructed to take care of;
- Reg 3(2)(b), communicate to his Principal all the necessary information available to him; and
- Reg 3(2)(c), comply with reasonable instructions given by his Principal.
The Principal’s Duties:
- Reg 4(1), the Principal must act dutifully and in good faith;
- Reg 4(2)(a), provide his commercial Agent with the necessary documentation;
- Reg 4(2)(b), obtain for his commercial Agent the information necessary for the performance of the agency contract; and
- Reg 4(3), inform his commercial Agent within a reasonable period of his acceptance or refusal of any commercial transaction the commercial Agent has procured for him.
- Duties Under Common Law
The Agent’s Duties:
- Obey the Principal’s instructions;
- Not to utilise secret profits;
- Avoid conflict of interest; and
- To account to the Principal for any utilised profits.
The Principal’s Duties:
- Pay the Agent;
- Repay the Agent any incurred expenses; and
- Indemnify the Agent of any losses incurred in the course of work.
- The Agency Agreement
Where the Principal and Agent are free to confirm the mutual duties and obligations they wish to apply to each other.
The Termination of an Agency Agreement Under Regulations 1993
The minimum notice periods under Reg 15 are a one-month notice in the first year of the Agency, a two-month notice for the second year, and a three-month notice for the third year and beyond.
Under Reg 15(2), the Parties cannot agree on a shorter notice, but they can agree on a longer notice under Reg 15(3).
As a crucial aspect for any business involved in agency agreements, in the following article, we will delve into the important topic of understanding the difference between indemnifying and compensating the Agent under Reg 17 of the Regulations 1993.
Overall, it is important to have a robust agency agreement in place for your business, which can safeguard you from any unforeseen legal disputes or issues that may arise. To this end, we highly recommend that you request AIO Legal Services to draft an affordable Agency Agreement for your business. By doing so, you can rest assured that your interests are fully protected, and your business can thrive without worrying about legal complications.
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