Erjona Morina wins Mason Hayes essay prize 2022
Whenever any agent acts for an undisclosed principal he is, to the outside world, the principal.’ (Oystertec plc v Barker [2003] RPC 29 at [5]). To what extent does commercial convenience justify the operation of the law of undisclosed agency and is this problematic?
The doctrine of undisclosed agency has been characterised as a legal anomaly, departing from elementary contractual principles and engendering criticism for its ‘logically indefensible’[1] and ‘unjust’[2] nature emanating from its unique legal position concerning the principal and agent who appears ‘to the outside world the principal’. However, as the statement conveys, justifications have been advanced in providing for the operation of this doctrine, in particular references to the ‘desirable result’[3] of commercial convenience encompassing these justifications. This is evident in case law and scholarly discourse, both of which assume the integral importance provided by commercial convenience in modern-day commerce. As such, in assessing whether commercial convenience is able to soundly justify the operation of undisclosed agency and whether it is problematic, careful consideration will be made to contractual principles, liabilities and limitations imposed on the parties. Ultimately, these considerations will cumulatively demonstrate that while deeply ingrained doctrinal difficulties and other issues persist, the commercial and practical merits override and justify such issues.
Foremost, the doctrine of agency may be simplified as ‘the law of delegation’[4] whereby the agent is utilized as a commercial intermediary for the principal,[5] although, one must distinguish between disclosed and undisclosed agency as both differ in nature and thereby differ in their practical implications. Unlike disclosed agency, undisclosed agency involves a principal whose existence is unknown to the third party at the time of contracting and assumes that the agent is contracting on his own behalf.[6] By operation of this doctrine, this has meant that whilst the agent seems ‘to the outside world, the principal’, the undisclosed principal may ‘reap the fruits of the contract’ despite having no direct relations with the third party.[7] This disposition was highlighted in Siu Yin Kwan v Eastern Insurance [1994] where it was opined that upon the intervention on the contract by the undisclosed principal, they may sue and be sued whilst the agent’s rights are extinguished but their contractual liabilities remain.[8] Indeed, this has been recognised to be a ‘well-settled anomaly…justified on grounds of commercial convenience’.[9]
As adroitly conveyed by Goodhart and Hamson, this has attracted much criticism due to the anomalies embedded within the doctrine, namely the anomalies pertaining to the right of the undisclosed principal to intervene and sue in a contract he is not a party to.[10] Such anomalies are theoretically problematic as it has meant that the doctrine operates on ‘fictions’[11] by treating the undisclosed principal as a party to the transaction and has resulted in many futile attempts by scholars to provide adequate explanations for this.[12] Further, Lord Justice Smith,[13] Lord Davey[14] and Lord Lindley[15] have also acknowledged the unsoundness of the anomalous nature of the doctrine in their dictums suggesting judicial consensus on this view and therefore, exhibiting how it has become a source of both legal and judicial ‘anxiety and confusion’.[16] Thus, the incoherent conceptual basis resulting from the doctrines anomalous nature presents a persuasive case in demonstrating how problematic undisclosed agency is. The premise follows that the ‘inexplicable’[17] and ‘regrettable’[18] legal anomalies may be too overwhelming for commercial convenience to be capable of justifying the operation of undisclosed agency as its theoretical foundations are rooted in fallacies which is inherently problematic.
This view becomes more convincing when supplementing it with other scholarly analysis. Pollock and Ames have equally condemned the doctrine for being ‘wholly inconsistent’[19] and ‘violating the fundamental principles of contract’[20] as apparent with the principle of privity of contract to which doctrine of undisclosed agency runs counter to. Plainly, the mere concept of undisclosed agency counterposes the crucial underpinnings of privity of contract that provides for the contractual burdens and rights of the contract to solely bind the parties to it, contrarily undisclosed agency permits the intervention of an undisclosed principal in a contract he is not a party to and thereby operates as an exception to this contractual principle. Hence, Merkin’s claim that the doctrine is “perhaps the greatest challenge to privity from the rules of agency” becomes cogent under this observation.[21] Correspondingly, the contractual principle of consensus ad idem is overlooked as the third party is unknowingly contracting with a ‘stranger’. Thus, the incongruity between the law of undisclosed agency and principles of contract aides the view that the doctrine is innately problematic. As such, under the preceding analysis, the problematic nature of the doctrine becomes self-evident and indisputable with the commercial convenience justifications coming to look increasingly thin and unlikely to justify the operation of undisclosed agency.
However, the previous argument’s soundness is invalidated upon closer inspection. It is advanced that the doctrine pre-dates the aforementioned contractual principles and therefore, deems the criticisms of doctrine as being contradictory as ‘unfair’[22]. As Chang-Han posits, the doctrine dates back to the 18th century, a time which those contractual principles had not yet evolved. This, therefore, undermines the previous argument’s plausibility as the doctrine has been ‘well-settled’[23] before the theories of contract had even developed meaning that it makes no more sense to say that the doctrine ‘is anomalous when measured by contract principles than it is to say that privity of contract is anomalous because it is inconsistent with the undisclosed principal doctrine’.[24] Similarly, as recognised by Lord Halsbury, though the doctrine may be validly said to be ‘an anomaly, it certainly is not the only one in our law’ and attempts to harmonise the law will only lead to ‘perplexing’ and impracticable results unfit for commercial practice and transactions.[25] From this standpoint, one may suggest that the opposition to the operation of the doctrine of undisclosed agency provides a weak case in exhibiting how problematic it is. Thus, it is likely that the commercial convenience justifications will be able to justify the operation of the doctrine as the opposition itself is feeble and vulnerable to repudiations.
Henceforth, the latter argument presents a more convincing case in demonstrating how the operation of undisclosed agency may be justified under commercial convenience despite its problematic aberration from contractual principles and incoherency. Whilst the doctrine does have many issues both scholars and critics coincide in its expediency for facilitating business efficacy by ensuring commercial ease, with continental jurisprudence deeming the doctrine as ‘highly valuable’ in its practical application in modern-day commerce through its employment of a commercial intermediary.[26] Indeed, the doctrine was the product of mercantile convenience, and its commercial relevance remains profound as the agency relationship proves to be “common and useful in business transactions”[27] particularly in light of contracts used in present-day which are more complex than bilateral agreements. As Lord Lindley conveys party identities are a ‘matter of indifference’ as commercial realities do not hold this to be a material issue.[28] Macgregor ratifies further that though the agent seems ‘to the outside world, the principal’ this is a ‘small inconvenience’ to the third-party as the only difference is that they must perform to a different party as contracts are often impersonal, hence, the employment of a ‘middleman’ is highly practicable and convenient in this regard.[29] Notably, there are limitations placed on the doctrine for personal contracts which prohibits the intervention of the undisclosed principal, thus, reaffirming how the doctrine operates to the convenience of the parties. Moreover, a plethora of other convenient commercial reasons exist for the operation of the doctrine, for example, the principal may seek to conceal their identity to prevent extortionate behaviour from the third party as in Senor v Bangor Mills (1954) whereby the principal’s known needs for nylon yarn and wealth meant that they were exploited by vendors demanding high prices.[30] Equally, the principal may wish to preserve their identity to prevent their business from being adversely affected in other forms as illustrative in Soltau v Loewenthal (1888) whereby the claimant did not want it known that they were dealing with rubber as to prevent competition.[31]
Hence, when cumulatively considering the commercial and economic merits of the doctrine, one may validly conclude that commercial convenience does indeed justify the operation of undisclosed agency to a substantial extent. Albeit that is not to say that that the problems are overlooked but rather having acknowledged both arguments it is irrefutable that a comparative observation exposes how the doctrinal and theoretical issues of the doctrine provide a weak case against the operation of undisclosed agency and how the former argument is eroded upon closer observation on the inceptions of both doctrines. As Cheng-Han recognises undisclosed agency ‘conforms readily to the needs of society’ due to its commercial convenience which is ‘an indicator of its inherent value and correctness’ and thus, makes it wholly justifiable in its operation due to its ability to mirror commercial realities.[32] It is, therefore, concluded that the doctrine of agency should not be buried in its theoretical flaws, nor should it be troubled by the rigid principle of privity of contract which retains less relevance in commercial reality. As eloquently stated by Müller-Freienfels ‘the institution of “undisclosed agency” plays the role of a prophet offering a solution of urgent problems of our day’ through the commercial convenience it provides which is pivotal for the efficient running of business and commerce and overrides any other issues faced by the doctrine.[33]
Consecutively, the liabilities of the parties will be considered under the doctrine of election which provides for two avenues to sue for the third party – albeit this is contingent on the undisclosed principal intervening on the contract or the disclosure of their identity. Though the contract is situated between the agent and the third party, the basis of the undisclosed principal’s liability under this doctrine is that they must simultaneously bear the benefits and burdens of the contract-made-on-his-behalf-and therefore, be liable to the third party.[34] Notably, the third party may-only-sue-either-the-principal-or-the-agent-as-the-doctrine-of-merger-prohibits-them-from receiving-double-compensation-by-merging both claims into one judgment.[35] When electing, the election must be unequivocal and the third party must have the full facts moreover, the commencement of proceedings by the third party will only provide a ‘strong evidence of election, though not necessarily conclusive’.[36] Prima facie this seems to be a ‘tricky situation’[37] for the agent as Müller-Freienfels recognises an ‘unjust burden is laid upon the agent’ who may be elected and sued by the third party despite merely acting on his actual authority for the interests of his principal.[38] This is problematic as under the operation of undisclosed agency and the doctrine of election, the agent is placed in a more vulnerable position as they bear more risks by becoming a contracting party as opposed to a disclosed agency situation where they are merely a ‘channel of rights.’[39] Albeit while this analysis does contain some valid and persuasive reasoning as to the problematic nature of both doctrines which subject the agent to a more onerous position, it is largely justified under the commercial convenience it provides as set out below.
First, the burdens of the agent may be somewhat overstated, as postulated by Richmond there is a common assumption made by third parties that the principal has ‘deeper pockets’ meaning that they are more likely to sue them rather than the agent.[40] Further, a comparative analysis of our counterparts exhibits how the agent’s position is to some degree convenient for example, in France and Germany there is no right of election, but rather the agent is accepted as acting at the same time for himself and the principal.[41] Thus, it is clear that the agent is placed under a more commercially convenient position when acknowledging this, their chances of election are lower than that of the principal and under the operation of the doctrine in this jurisdiction they are one of two options instead of just one which justifies the operation of undisclosed agency to some extent. Also, as noted by Macgregor, though the agent faces an increased risk under undisclosed agency due to the possibility of being liable for breach of contract, in practice agents increase their fees to reflect the risk or add an indemnity clause in their contract with the principal covering any losses caused by such actions.[42] This suggests that the operation of the doctrine is not as problematic as first presumed. Likewise, the doctrine of merger and election is also commercially convenient for the principal and agent in the sense that it allows a single coherent transaction which avoids duplication and circuity of action by providing a direct route to sue rather than separating it into two separate incidents that may be litigated.[43] Hence, the law balances the commercial conveniences of the parties, the third party is given the right to election and protection but not an unfettered right to litigate against both of them which reiterates how-the-doctrine forges a-fair and justifiable-compromise-while-facilitating-to-the commercial-convenience-of-the-parties-involved.
Third, the-opportunity-given-to-the-third-party-for-the-commercially-convenient-exercise-of-an election (as-they-may-elect-the-person-who-will-be-most-beneficial-for them in recovering their losses) ‘achieves a fair result in the case where the plaintiff is unaware of the principal’s existence’. [44] This commercially convenient procedural avenue open to the third party justifies the operation of the doctrine to a large extent as despite problematically imposing liability and burdens on the agent it is valid considering that the agent deceivingly seemed ‘to the outside world the principal’ yet they were not and the undisclosed principal could intervene in the contract despite being an external party to it. Hence, the ‘grave injustice’[45] experienced by the third party is remedied through the employment of the doctrine of election as they simultaneously-served-justice-by-giving-them-the commercially convenient option to elect in the event-that-they-need-to-sue-and-are-provided-more-protection – both of which undoubtedly justifies the problem of the onerous position of the agent and the operation of this doctrine. Lastly, the fact that the commencement of proceedings is only indicative of an election being made by the third party is commercially convenient for them as if the third party is enlightened by new information such as the agent becoming insolvent, they may change whom they wish to elect and sue the principal instead who has the ‘deeper pockets’[46] – recovery would, therefore, be more lucrative in this respect. This ultimately justifies the operation of undisclosed agency as the third party was put in precarious position but is remedied through the commercial convenience-provided-by-the-operation-of the doctrine which validates the problematic position by the agent. Conclusively, when cumulatively taken together it is conspicuous how commercially convenient the doctrine of election is under undisclosed agency, primarily for the third party who may justifiably enjoy the windfall given the circumstances they found themselves in.[47]
Subsequently, the limitations on the operation of undisclosed agency will be discussed, principally how the undisclosed principal’s ability to intervene into the contract is prohibited where the third party relies on the positive attribution of the agent of the principal when contracting.[48] Importantly, this limitation only operates where the personal attribute underpinning the contract cannot be vicariously performed.[49] As illustrative in the dicta provided by Lord Justice Scrutton in Greer v Downs Supply Co [1927] where ‘reasons personal to the agent induced the other party to contract with the agent’[50] the undisclosed principal ‘cannot be made a party to any contract with the appellant for the sale of goods’.[51] Further, the courts will look at the subjective intention of the agent in contracting on behalf of the undisclosed principal as per Rolls Royce Power Engineering Plc v Ricardo Consulting Engineers Ltd [2004].[52] Such findings by the courts are commercially convenient for the third party as it allows them to contract with who they want rather than obliging them to contract with the hidden undisclosed principal and thereby accounts for their commercial preferences or reasons for contracting with the agent. This speculation is reaffirmed by the facts of the former case, the third party purchased timber from the agent who was working on behalf of the undisclosed principal as to set off the agent’s prior debt owed to them from a previous transaction against the purchase price. As aforementioned, it was held that no other party could intervene in this contract due to the ‘personal attributions’ of the agent who owed prior debt, hence, by allowing the third party to rely on this ‘positive attribution’ it ensures their commercial convenience as their reason for contracting was adhered to. Equally, the requirement of a subjective intention as opposed to an objective-one-reiterates-that ‘whenever-any-agent-acts-for an undisclosed principal, he is, to the outside world, the principal’ and will be treated as such in his dealings with the third party which is-fair. It-subsequently-follows-that-no-justification-of-this-limitation-is-required-since-it-is-both commercially-convenient-and-unproblematic-in-nature-as-the-parties and contract remains as it was-when-it-was-initiated-to-ensure-commercial-ease-and-fairness.
By contrast, reliance on negative attributions by the third party has proven both problematic and void of any sound commercial convenience justifications under the approach of Said v Butt [1920].[53] In this case, Justice McCardie held that the undisclosed principal (a critic) could not assert his right to intervene into the contract as there existed a special characteristic of the opening night and a ‘strikingly present’ personal element which he knew of and knew that the third party (theatre) would not be willing to contract with him as a result of.[54] This is problematic as while one may accept the commercial convenience rationale underlying the reliance on a positive attribute of the agent which proved important to the contract, the reasoning here lacks any cogent commercial justifications and breeds uncertainty in the operation of undisclosed agency as the third party may at any point assert his unwillingness to contract with the principal to limit them from intervening. It is, therefore, unsurprising that in practice the preferred view is that of Dyster v Randall (1926) which permitted the intervention of the undisclosed principal by distinguishing the circumstances; the facts concerned an agreement for the sale of land that was ‘an agreement which the defendants would have entered into with any other person’ meaning no special characteristics existed nor was the identity of the principal important to the contract. Thus, it was held that-the-undisclosed-principal-could-intervene.[55] Ultimately, this-approach provides-a-more-commercially-convenient-and-unproblematic-framework-for-the-operation-of undisclosed-agency-and-enables-commercial-accessibility-to-be-justifiably-facilitated to in these circumstances.
Conclusively, it is-irrefutable-that-whilst-deeply-seated-problems-remain-within-the-operation of undisclosed agency it has been consistently justified by commercial convenience to a substantial extent. The practical and economic merits provided for through commercial convenience-continues-to-bear-great-importance-within-modern-day-commerce which makes it indisputably-valuable-and-justifies-any-theoretical, doctrinal, or other-practical-issues-faced-in the doctrine’s operation. Its-ability-to-adhere-to-commercial-realities-remain-unmatched-and while ‘bemoaned by doctrinal purists’ it will be ‘welcomed by commercial pragmatists.’[56]
Table of authorities:
- Armstrong v Stokes (1872) LR 7 QB 598
- Clarkson Booker v Andjel [1964]
- Dyster v Randall & Sons [1926]
- Greer v Downs Supply Co [1927] 2 KB 28
- Keighley and Co v Durant [1901] AC 240
- Rolls Royce Power Engineering Plc v Ricardo Consulting Engineers Ltd [2003] EWHC 2871 [2004]
- Said v Butt [1920]
- Senor v Bangor Mills (1954) 211 F2d 685
- Soltau v Loewenthal (1888) 1 NYS 168
- Siu Yin Kwan v Eastern Insurance Co Ltd [1994] AC 199, [1994] 2 WLR 370
Bibliography:
Journal articles
- Ames J, ‘Undisclosed Principal— His Rights and Liabilities’ (1909) 18 Yale LJ 443
- Cheng-Han T, ‘Undisclosed principals and contract’ (2004) 120 Law Quarterly Review 480
- Goodhart A and Hamson C, ‘Undisclosed principals in contract’ (1932) 4(3) Cambridge Law Journal 320
- Heyle G, ‘Undisclosed Principal’s Rights and Liabilities: A Test of Election of Remedies’ (1951) 39(3) California Law Review 409
- Macgregor L, ‘Empire, Trade, and the Use of Agents in the 19th Century: The “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law’ (2019) 79(4) Louisiana Law Review 986
- Müller-Freienfels W, ‘Comparative Aspects of Undisclosed Agency’ (1955) 18(1) The Modern Law Review 33.
- Müller-Freienfels W, ‘The undisclosed principal’ (1953) 16(3) The Modern Law Review 299
- Pollock F, ‘Notes’ (1887) 3 Law Quarterly Review 358
- Richmond M, ‘Scraping Some Moss from the Old Oaken Doctrine: Election Between Undisclosed Principals and Agents and Discovery of Their Net Worth’ (1983) 66(4) Marquette Law Review 745
- Sargent M and Rochvarg A, ‘A Re-examination of the Agency Doctrine of Election’ (1982) 36(3) University of Miami Law Review 411
- Seavey W, ‘The Rationale of Agency’ (1920) 29(8) Yale LJ 859
- Tettenborn A, “Insurers and Undisclosed Agency—Rough Justice and Commercial Expediency” (1994) 53(2) Cambridge Law Journal 223
- The Harvard Law Review Association, ‘Agency. Statute Abolishing Doctrine of Election of Remedies between Agent and Undisclosed Principal’ (1939) 52(8) Harvard Law Review 1371
Books
- Fox D and others, Sealy and Hooley’s Commercial Law (6th edn, OUP 2020)
- Reynolds F, ‘Agency’ in Andrew Burrows (ed) English Private Law (3rd edn, OUP 2013)
- Fridman G, ‘Undisclosed Principals and the Sale of Goods’ in Danny Busch, Laura Macgregor, and Peter Watts (eds) Agency Law in Commercial Practice (OUP 2016)
- Roach L, Card & James’ Business Law (4th edn, OUP 2016)
- Merkin R, Privity of Contract: The Impact of the Contracts (Rights of Third Parties) Act 1999 (1st edn, Routledge 2000)
- Stoljar S, The Law of Agency (Sweet & Maxwell, 1961)
- Krebs T, English and European Perspectives on Contract and Commercial Law (1st Edn, Hart Publishing 2017)
[1] James Barr Ames, ‘Undisclosed Principal— His Rights and Liabilities’ (1909) 18 Yale LJ 443, 457.
[2] Samuel Stoljar, The Law of Agency (Sweet & Maxwell, 1961) 206.
[3] Warren Seavey, ‘The Rationale of Agency’ (1920) 29(8) Yale LJ 859, 871.
[4] Lee Roach, Card & James’ Business Law (4th edn, OUP 2016) 200.
[5] Francis Reynolds, ‘Agency’ in Andrew Burrows (ed) English Private Law (3rd edn, OUP 2013) 614.
[6] David Fox and others, Sealy and Hooley’s Commercial Law (6th edn, OUP 2020) 188.
[7] James Barr Ames, ‘Undisclosed Principal— His Rights and Liabilities’ (1909) 18 Yale LJ 443, 455.
[8] Siu Yin Kwan v Eastern Insurance Co Ltd [1994] AC 199, [1994] 2 WLR 370 [207]
[9] Ibid.
[10] Arthur Goodhart and Charles Hamson, ‘Undisclosed principals in contract’ (1932) 4(3) Cambridge Law Journal 320, 320.
[11] Warren Seavey, ‘The Rationale of Agency’ (1920) 29(8) Yale LJ 859, 878.
[12] Gerald Fridman, ‘Undisclosed Principals and the Sale of Goods’ in Danny Busch, Laura Macgregor, and Peter Watts (eds) Agency Law in Commercial Practice (OUP 2016) 72.
[13] Keighley and Co v Durant [1901] AC 240 [256] (Smith LJ)
[14] Keighley and Co v Durant [1901] AC 240 [261] (Davey L)
[15] Keighley and Co v Durant [1900] 1 QB 629 [635] (Lindley L)
[16] Laura Macgregor, ‘Empire, Trade, and the Use of Agents in the 19th Century: The “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law’ (2019) 79(4) Louisiana Law Review 986, 1000.
[17] Wolfram Müller-Freienfels, ‘The undisclosed principal’ (1953) 16(3) The Modern Law Review 299, 305.
[18] Ibid, 304.
[19] Frederick Pollock, ‘Notes’ (1887) 3 Law Quarterly Review 358, 358.
[20] James Barr Ames, ‘Undisclosed Principal— His Rights and Liabilities’ (1909) 18 Yale LJ 443, 463.
[21] Robert Merkin, Privity of Contract: The Impact of the Contracts (Rights of Third Parties) Act 1999 (1st edn, Routledge 2000) 210.
[22] Tan Cheng-Han, ‘Undisclosed principals and contract’ (2004) 120 Law Quarterly Review 480, 481.
[23] Armstrong v Stokes (1872) LR 7 QB 598
[24] Tan Cheng-Han, ‘Undisclosed principals and contract’ (2004) 120 Law Quarterly Review 480, 485.
[25] Keighley and Co v Durant [1901] AC 240 [256] (Halsbury L)
[26] Wolfram Müller-Freienfels, ‘The undisclosed principal’ (1953) 16(3) The Modern Law Review 299, 300.
[27] Keighley and Co v Durant [1901] AC 240 [261] (Lindley L)
[28] Ibid.
[29] Laura Macgregor, ‘Empire, Trade, and the Use of Agents in the 19th Century: The “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law’ (2019) 79(4) Louisiana Law Review 986, 993.
[30] Senor v Bangor Mills (1954) 211 F2d 685
[31] Soltau v Loewenthal (1888) 1 NYS 168
[32] Tan Cheng-Han, ‘Undisclosed principals and contract’ (2004) 120 Law Quarterly Review 480, 485.
[33] Wolfram Müller-Freienfels, ‘The undisclosed principal’ (1953) 16(3) The Modern Law Review 299, 300.
[34] James Barr Ames, ‘Undisclosed Principal— His Rights and Liabilities’ (1909) 18 Yale LJ 443, 447.
[35] Mark Sargent and Arnold Rochvarg, ‘A Re-examination of the Agency Doctrine of Election’ (1982) 36(3) University of Miami Law Review 411, 416.
[36]Clarkson Booker v Andjel [1964] 2 QB 775, [1964] 3 WLR 466 [787] ((Willmer LJ)
[37] Andrew Tettenborn, “Insurers and Undisclosed Agency—Rough Justice and Commercial Expediency” (1994) 53(2) Cambridge Law Journal 223, 223.
[38] Wolfram Müller-Freienfels, ‘The undisclosed principal’ (1953) 16(3) The Modern Law Review 299, 301.
[39] Laura Macgregor, ‘Empire, Trade, and the Use of Agents in the 19th Century: The “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law’ (2019) 79(4) Louisiana Law Review 986, 993.
[40] Michael Richmond, ‘Scraping Some Moss from the Old Oaken Doctrine: Election Between Undisclosed Principals and Agents and Discovery of Their Net Worth’ (1983) 66(4) Marquette Law Review 745, 746.
[41] Wolfram Müller-Freienfels, ‘Comparative Aspects of Undisclosed Agency’ (1955) 18(1) The Modern Law Review 33, 36.
[42] Laura Macgregor, ‘Empire, Trade, and the Use of Agents in the 19th Century: The “Reception” of the Undisclosed Principal Rule in Louisiana Law and Scots Law’ (2019) 79(4) Louisiana Law Review 986, 993.
[43] Wolfram Müller-Freienfels, ‘The undisclosed principal’ (1953) 16(3) The Modern Law Review 299, 301.
[44] The Harvard Law Review Association, ‘Agency. Statute Abolishing Doctrine of Election of Remedies between Agent and Undisclosed Principal’ (1939) 52(8) Harvard Law Review 1371, 1372.
[45] Arthur Goodhart and Charles Hamson, ‘Undisclosed principals in contract’ (1932) 4(3) Cambridge Law Journal 320, 320.
[46] Michael Richmond, ‘Scraping Some Moss from the Old Oaken Doctrine: Election Between Undisclosed Principals and Agents and Discovery of Their Net Worth’ (1983) 66(4) Marquette Law Review 745, 746.
[47] Grover Heyle, ‘Undisclosed Principal’s Rights and Liabilities: A Test of Election of Remedies’ (1951) 39(3) California Law Review 409, 411.
[48] David Fox and others, Sealy, and Hooley’s Commercial Law (6th edn, OUP 2020) 194.
[49] Ibid.
[50] Greer v Downs Supply Co [1927] 2 KB 28 [35] (Scrutton LJ)
[51] Greer v Downs Supply Co [1927] 2 KB 28 [31]
[52] Rolls Royce Power Engineering Plc v Ricardo Consulting Engineers Ltd [2003] EWHC 2871 [2004] 2 All ER [50]
[53] Said v Butt [1920] 3 KB 497
[54] Said v Butt [1920] 3 KB 497 [503] (McCardie LJ)
[55] Dyster v Randall & Sons [1926] Ch 932 [938]
[56] Thomas Krebs, English and European Perspectives on Contract and Commercial Law (1st Edn, Hart Publishing 2017) 181.