Nami Bath wins Mason Hayes essay prize 2026

Aspects of Commercial Law Essay (Nami Bath)

Agency law wasn’t developed to be coherent; it was developed to be useful. This is illustrated in Montgomerie when Wright J asserts “no doubt whatever as to the general rule” governing undisclosed principals before immediately listing eight exceptions.^[1] This contradiction is characteristic of agency law: apparent authority despite no actual consent;^[2] Watteau creates liability based on “usual authority” that fits no recognised category;^[3] and undisclosed agency contradicts the fundamental premise that agents must act openly on behalf of principals.^[4]

These contradictions are widely seen as problems requiring solutions^[5] and many have proposed unifying principles, including: consent-base theories,^[6] power-liability analyses,^[7] or estoppel frameworks^[8] but these attempts show the assumption that agency law’s incoherence is a flaw. This essay argues that agency law’s incoherence is not a flaw but necessary to be useful. It developed incrementally^[9] as a collection of practical solutions addressing commercial problems contract, tort and property law could not resolve.^[10] Each solution borrowed whatever concept seemed appropriate, regardless of theoretical consistency,^[11] producing a functional system where pragmatism trumps theoretical coherence.^[12]

This essay demonstrates this through four areas where pragmatism takes precedence over principle. First, agency law’s theoretical foundations reveals incompatible borrowing from contract, tort, and property law with no coherent organising principle.^[13] Second, the overlapping categories of actual, apparent and usual authority show competing pragmatic responses rather than a systematic doctrine.^[14] Third, disclosed agency’s exceptions prioritise pragmatic solutions rather than principle.^[15] Finally, undisclosed agency, which contradicts agency’s fundamental principles, is based on commercial necessity.^[16] Together, these prove that agency law’s incoherence is structural not accidental, and that coherence was never the objective.

Section I: Consent, Estoppel, and Necessity

Agency law’s leading theory is consent. Bowstead & Reynolds define agency as arising where ‘one person (a “principal”) manifests assent to another person (an “agent”), that the agent shall act on the principal’s behalf and is subject to the principal’s control, and the agent manifests or otherwise consents so to act.’^[17] This corresponds to contract law’s voluntarism and describes straightforward cases where principals expressly authorise agents.^[18] However, consent theory only describes the typical case of express actual authority; most agency principles function without genuine consent.^[19] The consent theory is not wrong, it just describes only one of several solutions agency law uses. When consent cannot address a situation, agency law borrows from other legal areas regardless of theoretical consistency.

Apparent authority shows agency law’s priority is market protection over consensual principles. In Freeman & Lockyer, Diplock LJ held that apparent authority creates a ‘legal relationship between the principal and the contractor’ that is ‘quite independent’ of any actual authority.^[20] The principal becomes bound by unauthorised acts through ‘holding out’ (a representation to third parties that the agent has authority), regardless of whether the principal consented to those specific acts. ^[21]

This principle filled a gap where third parties dealing with apparent agents of companies needed protection because neither contract law (prevented by the privity doctrine) or tort law (no remedy for pure economic loss) could address this.^[22] So agency law borrowed estoppel principles from equity,^[23] and the resulting principle is similar to contract law’s objective principle but works differently because unlike contract law where both parties are protected, apparent authority protects only third parties.^[24] So the principal may be bound despite neither intending or consenting to the transaction. Reynolds notes that apparent authority functions through representation rather than principal’s consent. ^[25] This is not consensual agency; estoppel solves a problem that consent theory can’t, illustrating that different commercial problems require different solutions regardless of incompatible principles.

Furthermore, agency law clearly isn’t based on consent when it comes to commercial necessity or statutory provisions; this is illustrated in agency of necessity in maritime cases. In The Winson, the House of Lords held that the ship’s master could bind cargo owners to salvage contracts despite no pre-existing relationship.^[26] Lord Diplock distinguished the master’s power to create contractual obligations as ‘true’ agency of necessity from the right to reimbursement for reasonable expenses, noting that inability to communicate with the principal is essential only for the former.^[27] The principle came from a need to address the practical impossibility of obtaining authorisation during maritime emergencies where quick action is a commercial necessity and to wait would undermine commercial needs.^[28]

Statutory provisions similarly create agency relationships regardless of consent. S5 Partnership Act 1890 makes every partner an agent of the firm, regardless of any other agreement.^[29] The Mental Capacity Act 2005 allows intervention on behalf of mentally incapacitated persons, allowing third parties to enter transactions that bind the person financially without any manifestation of assent.^[30] These are not exceptions to consent-based agency, they are principles that were created because consent-based principles could not address these problems properly, demonstrating agency law uses whatever works in practice regardless of theory.

So agency law is based on three incompatible ideas: consent from contract law, reliance from equity, and statutes in emergencies or for people who can’t consent. There’s no single rule that unifies them because each was developed to deal with a different kind of problem. This incompatibility becomes even more clear when looking at how different authorities overlap and contradict one another.

Section II: Actual, Apparent, and Usual Authority

Agency law is based on three types of authorities, all deriving from incompatible theories. Express and implied actual authority is based on a consensual relationship between the principal and the agent.^[31] Apparent authority arises from the principal’s representation to third parties that the agent possesses authority.^[32] Usual authority, imposes liability based on the powers usually associated with the agent’s position, even where the principal is undisclosed and has made no representation.^[33] This incompatibility shows functional necessity over theoretical coherence. Each authority addresses a problem that the others cannot solve, again showing agency law’s pragmatism.

Actual authority is for where the principal intends the agent act.^[34] The relationship is internal and consensual; authority derives from the principal’s manifestation of assent, whether express or implied.^[35] The principal receives the benefit or burden of transactions that they authorised, maintaining control of their transactions.^[36]

Apparent authority, on the other hand, protects third parties’ reasonable reliance on representations of authority, regardless of the principal’s actual intentions.^[37] The relationship is external; the authority doesn’t derive from any agreement, it comes from the principal’s conduct towards third parties^[38] and binds principals to transactions they didn’t intend. ^[39] As Lord Denning stated in Hely-Hutchinson, apparent authority ‘often coincides with actual authority’ but ‘sometimes ostensible authority exceeds actual authority.’^[40] When it does, the principal bears liability despite neither authorising or intending the transaction.^[41]

These principles serve different purposes, which naturally makes them incompatible.^[42] Armagas shows apparent authority’s limits when internal governance is at stake.^[43] The vice-president entered a three year charterparty, without having actual authority.^[44] The House of Lords held that no apparent authority arose; to protect internal governance structures, apparent authority cannot bind the principals where the third parties know the agent lacks the actual authority.^[45]

However, apparent authority binds principals when commercial expectations require it. In First Energy, a senior bank manager communicated head office approval of a credit facility, without having actual authority to approve or even communicate approval.^[46] The Court of Appeal held the bank bound by apparent authority as the manager’s seniority created a reasonable expectation that he could communicate head office decisions.^[47] Steyn LJ stated that ‘the reasonable expectations of honest men must be protected.’^[48]

No single principle covers both cases. As Brown notes, the relationship between actual and apparent authority presents a ‘paradigm or paradox’ that cannot be resolved through theoretical consistency.^[49]Actual authority protects principals’ control over their business and apparent authority protects third parties’ reasonable expectations. They conflict because they solve incompatible problems: internal governance vs external reliance and principal’s control vs third party protection. Both are commercially necessary and neither can be dismissed for theoretical consistency.

Watteau v Fenwick is one of the most confusing parts of agency law.^[50] Humble managed a hotel for undisclosed principals who expressly forbid him to purchase cigars on credit.^[51] However, Humble still purchased cigars from the plaintiff who believed Humble was the proprietor.^[52] Wills J held the principal liable because such purchases fell within the authority ‘usually confided to’ a hotel manager.^[53] This decision is incompatible with both consent and estoppel. The principals neither consented or held Humble out,^[54] as the plaintiff believed him to be the principal not the agent and no representation occurred. ^[55]

Watteau has been described as “the most difficult and controversial decision” in agency law^[56] and criticised as having ‘doubtful origin’.^[57] The British Columbia Court of Appeal said it was ‘astonishing’ the case still has ‘signs of life’.^[58] However, English courts have not overruled it.^[59] It persists because merchants require it. Watteau addresses third parties who reasonably assume usual powers exist when dealing with people apparently controlling business premises.^[60] Allowing undisclosed principals to escape liability by secretly limiting authority would undermine commercial certainty.^[61] The doctrine serves commercial protection over theoretical coherence.^[62]

Section III: Disclosed Agency

In disclosed agency, the general rule appears straightforward: when an agent acts on behalf of a disclosed principal, the contract forms between the principal and third party, with the agent ‘dropping out’.^[63] This principle, as confirmed in Montgomerie, illustrates agency’s basic purpose: enabling principals to act through intermediaries without becoming party to every transaction.^[64] However, Wright J identified eight exceptions to this ‘general rule^[65] and these exceptions demonstrate pragmatic necessity. Each addresses commercial contexts that the general rules cannot. When applying the general rule cannot solve a certain commercial issue, exceptions are made to find realistic, pragmatic solutions. This pattern illustrates a characteristic of agency law which is that general principles are overridden by commercial necessity when the two conflict.

Agent liability exceptions illustrate this clearly. While disclosed agents are generally not personally liable (natural outcome of ‘dropping out’),^[66] a number of commercial contexts require exceptions. In Universal Steam Navigation, the House of Lords held that agents signing ‘as agents only’ avoided personal liability, establishing that express language of qualification prevents agent liability where agency is disclosed.^[67]

However, commercial necessity overrides this principle in specific contexts. Section 23 of the Bills of Exchange Act 1882 renders agents personally liable on negotiable instruments regardless of disclosed agency or qualifying language.^[68] This statutory exception reflects that negotiable instruments require certainty about who bears liability. Allowing agents to avoid liability through agency disclosure would undermine this commercial certainty that makes bills of exchange functional.^[69] So commercial necessity is prioritised over general agency principles. Similarly, oral contracts create a presumption of agent liability.^[70] In the Santa Carina, Kerr J held that this reflects the informality of oral transactions and that where parties have not put their agreement in writing and haven’t clearly identified the principal, the law presumes the agent intended personal liability to protect third parties.^[71] Less formality requires greater protection, again prioritising functionality over theoretical consistency.

These exceptions are direct responses to commercial situations where the general rule fails to address them adequately. Negotiable instruments require signature certainty and oral contracts require protective presumptions. Disclosed agency’s exceptions demonstrate that no single principle governs all commercial contexts. The general rule operates where agency is formal and disclosed and exceptions emerge where commercial necessity requires it. Market demands determine doctrine, not the reverse.

Section IV: Undisclosed Agency

Undisclosed agency is the point where agency law is furthest away from any logical principle. Where a third party contracts with an agent, thinking that the agent is the real contracting party and principal, the real principal can still enforce the contract and be held liable for it.^[72] This conflicts with every foundational principle covered above, as there is: no actual consent contradicting Section II;^[73] no representation or holding contradicting Section III;^[74] and the agent doesn’t ‘drop out’ contradicting Section IV.^[75] As Lord Lloyd stated in Siu Yin Kwan, the doctrine is ‘anomalous’.^[76] Courts acknowledge it ‘doesn’t sit well’ with established contract principles.^[77]

There are even more incompatibility as seen in Keighley, where the House of Lords held that an undisclosed principal cannot ratify an agent’s unauthorised acts.^[78] Yet, undisclosed agency allows principals to enforce contracts made without their authority. Lord Lindley acknowledged that it was an ‘anomaly’ but recognised that it was ‘too firmly established’ to abolish.^[79] The contradiction is seen in Boardman v Phipps, where parties ‘never authorised at all by their supposed principals could be treated as “self-appointed agents”’.^[80] Krebs admits that undisclosed agency ‘cannot be explained using the offer and acceptance model’ he proposes, acknowledging that ‘many have tried and failed’ to provide theoretical justification.^[81] This shows that agency law operates without consent when it is commercially necessary. It is clearly evident that agency law prohibits what undisclosed agency allows and there is no unifying principle for them as they have different functions.

However, undisclosed agency persists solely because mercantile practice demands it. Historically, merchants trading through factors required the ability to enforce contracts made in the factor’s name without disclosing their involvement, protecting trade secrets and competitive advantages in mercantile transactions.^[82] Without undisclosed agency, these essential mercantile transactions would fall through and with it, third parties aren’t harmed as they still receive the same performance they expected, from the agent or principal.^[83] As Reynolds notes in his analysis of the doctrine’s ‘practical problems,’ courts acknowledge that there is no theoretical explanation for the doctrine and that the only defense is ‘commercial convenience’ and that the doctrine is ‘too firmly entrenched’ in commercial practice to abolish.^[84]

The doctrine’s persistence despite universal criticism proves its functional necessity. Pollock called it ‘inconsistent with elementary doctrines’ in 1887.^[85] Goodhart and Hamson described it as presenting ‘difficult theoretical problems’.^[86] Yet English courts have consistently refused to abolish it. In Siu Yin Kwan, Lord Lloyd acknowledged its anomalous nature but still applied it. The pattern is clear that when theory conflicts with commercial necessity, it is set aside.^[87]

Undisclosed agency is agency law’s clearest example of choosing function over theory. Tan notes undisclosed agency ‘cannot be reconciled with fundamental principles of contract law’ yet persists because ‘commercial convenience trumps theoretical coherence.’^[88] Its persistence proves that agency law actively chooses usefulness over coherence and arguably its incoherence is not incidental but actually necessary.

Conclusion

Agency law’s apparent incoherence is not a theoretical failure but practical functionality. As this essay has demonstrated, agency law developed incrementally as a collection of practical solutions addressing specific commercial problems that contract, tort and property law were not able to address properly. Each doctrine borrowed concepts from whichever area worked best, regardless of consistency with other agency principles. This resulted in a functional system for agency law rather than theoretical coherence, just as Wright J acknowledged in Montgomerie of a ‘general rule’ qualified by eight immediate exceptions exemplifies. Even scholars looking for theoretical coherence admit it’s difficult. Krebs notes that ‘agency is not a miscellaneous other event’ but that ‘some agency cases will be contractual, some wrongs-based, others based on unjust enrichment.’^[89] This proves that the incoherence is structural, not accidental. Krebs’ unsuccessful attempt at contract law coherence on agency shows commercial pragmatism will always trump theoretical unity.

Agency law’s structure reveals a consistent pattern where when doctrine conflicts with commercial function, doctrine is set aside. Consent theory operates until estoppel proves necessary. Actual authority works until apparent authority protects market expectations. General rules apply until exceptions address specific contexts. Even undisclosed agency which contradicts agency’s basic premise, persists because merchants require it. This structural pattern demonstrates that agency law prioritises market functionality over doctrine.

This reveals something significant about commercial law generally: theoretical coherence is not essential for practical functionality. Commercial law developed incrementally to serve market needs and these doctrines persist because they are useful and adapt when circumstances require it. Agency law proves that pragmatism can successfully address diverse market problems.

Annotated Bibliography

Keighley, Maxsted & Co v Durant [1901] AC 240

This case addresses whether an undisclosed principal can ratify an agent’s unauthorised acts. The appellant attempted to ratify a contract made by an agent who purported to act for himself but intended to act for the principal. The House of Lords held that ratification requires the agent to have purported to act on behalf of the principal at the time of contracting. Lord Lindley acknowledged that undisclosed agency was an ‘anomaly’ but recognised it was ‘too firmly established’ to abolish.

The strength is it explicitly acknowledges the doctrine’s incoherence without offering a solution, showing judicial acceptance of pragmatism over principle. The weakness is the reasoning is circular as it just says that the doctrine cannot be abolished because it is established, but it was established without a coherent theoretical basis.

This case is central to my argument because courts clearly recognise the contradictions but apply the doctrines anyway for commercial necessity.

FMB Reynolds, ‘Practical Problems of the Undisclosed Principal Doctrine’ (1983) 36 CLP 119

This article looks at the practical issues of undisclosed agency, including settlement, set-off, and election problems. Reynolds notes courts have no theoretical explanation other than ‘commercial convenience’ and that it is ‘too firmly entrenched’ to abolish. The article provides a clear analysis of how undisclosed agency operates in practice despite its theoretical incoherence The strength is clearly stating that it persists out of commercial necessity not theoretical consistency.

This article supports my argument by showing scholars acknowledge agency law is pragmatic rather than theoretically coherent making incoherence is necessary rather than incidental.

Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480

This is the lead case for apparent authority. A company director acting as managing director without any formal appointment. Diplock LJ held that apparent authority creates legal relationships that are ‘quite independent’ of actual authority, arising from the principal’s representation to third parties rather than any agreement between principal and agent.

Its strength is explicitly stating apparent authority is based on estoppel rather than consent. Diplock LJ clearly separates actual authority from apparent and that they are independent of each other.

This case supports my essay by explicitly acknowledging agency law’s use of incompatible principles for different problems. Diplock LJ’s statement that the two authorities are ‘quite independent’ supports agency law prioritising practicality over coherence.

Thomas Krebs, ‘Agency Law for Muggles: Why There is no Magic in Agency’ in Andrew Burrows and Edwin Peel (eds), Contract Formation and Parties (OUP 2010)

This chapter argues that agency law should be explained through ordinary contract principles (offer and acceptance) rather than special ‘agency magic’. Krebs notes ‘consensual agency’ and ‘agency by operation of law’ as the two contradicting theoretical schools. He criticises operation of law and proposes eliminating the distinction between ‘actual’ and ‘apparent’ authority through objective contract analysis.

Its strengths are its critique of agency law’s foundational principles and stating its inconsistencies. However, its weakness is that Krebs clearly states that his proposed model doesn’t account for undisclosed agency or ratification.

The chapter is important for my essay because Krebs’ unsuccessful attempt at theoretical coherence proves my thesis that agency law’s incoherence is functional, not incidental or accidental. His critique of Fiona Trust shows how courts prioritise pragmatic outcomes over theoretical consistency.

Word Count: 547

Main Bibliography

Cases

Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] AC 717

Boardman v Phipps [1967] 2 AC 46

China-Pacific SA v Food Corpn of India (The Winson) [1982] AC 939

First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194

Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480

Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549

Keighley, Maxsted & Co v Durant [1901] AC 240

Montgomerie & Co v United Kingdom Mutual Steamship Association Ltd [1891] 1 QB 370

Rama Corpn Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147

Rhodian River Shipping Co SA v Halla Maritime Corp [1984] 1 Lloyd’s Rep 373

Santa Carina, The [1977] 1 Lloyd’s Rep 478

Sign-O-Lite Plastics Ltd v Metropolitan Life Insurance Co (1990) 73 DLR (4th) 541 (BCCA)

Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199

Universal Steam Navigation Co Ltd v James McKelvie & Co [1923] AC 492

Watteau v Fenwick [1893] 1 QB 346

Legislation

Bills of Exchange Act 1882

Mental Capacity Act 2005

Partnership Act 1890

Books

American Law Institute, Restatement of the Law of Agency (3rd edn, 2006)

Fox D and others, Sealy and Hooley’s Commercial Law: Text, Cases, and Materials (6th edn, OUP 2020)

Krebs T, ‘Agency Law for Muggles: Why There is no Magic in Agency’ in Andrew Burrows and Edwin Peel (eds), Contract Formation and Parties (OUP 2010)

Munday RJC, Agency: Law and Principles (3rd edn, OUP 2016)

Fox F, Principles of Contract (4th edn, Stevens and Sons 1885)

Watts PG (ed), Bowstead and Reynolds on Agency (21st edn, Sweet & Maxwell 2017)

Journal Articles

Brown I, ‘The agent’s apparent authority: paradigm or paradox?’ (1995) JBL 360

Goodhart AL and Hamson CJ, ‘Undisclosed Principals in Contract’ (1932) 4 CLJ 320

Reynolds FMB, ‘Agency: Theory and Practice’ (1978) 94 LQR 224 ‘Practical Problems of the Undisclosed Principal Doctrine’ (1983) 36 CLP 119

Tan C-H, ‘Undisclosed principals and contract’ (2004) 120 LQR 480

1. Montgomerie & Co v United Kingdom Mutual Steamship Association Ltd [1891] 1 QB 370, 371 (Wright J). ↑
2. Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, 503 (Diplock LJ); RJC Munday, Agency: Law and Principles (3rd edn, OUP 2016) 69. ↑
3. Watteau v Fenwick [1893] 1 QB 346; D Fox and others, Sealy and Hooley’s Commercial Law: Text, Cases, and Materials (6th edn, OUP 2020) 142. ↑
4. Keighley, Maxsted & Co v Durant [1901] AC 240, 246 (Lord Macnaghten). ↑
5. Thomas Krebs, ‘Agency Law for Muggles: Why There is no Magic in Agency’ in Andrew Burrows and Edwin Peel (eds), Contract Formation and Parties (OUP 2010) 205; FMB Reynolds, ‘Practical Problems of the Undisclosed Principal Doctrine’ (1983) 36 CLP 119. ↑
6. PG Watts (ed), Bowstead and Reynolds on Agency (21st edn, Sweet & Maxwell 2017) art 1(1); American Law Institute, Restatement of the Law of Agency (3rd edn, 2006) para 1.01. ↑
7. Munday (n 2) 17. ↑
8. Freeman & Lockyer (n 2) 503-505 (Diplock LJ); Bowstead and Reynolds (n 6) para 8-029. ↑
9. Sealy and Hooley (n 3) 103-104. ↑
10. ibid 104. ↑
11. Krebs (n 5). ↑
12. ibid 214. ↑
13. Krebs (n 5); Sealy and Hooley (n 10) 105-107. ↑
14. Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549, 583; First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194, 196; Munday (n 2) 49-104. ↑
15. Montgomerie (n 1) 371. ↑
16. Keighley (n 4) 251 (Lord Lindley); FMB Reynolds (n 5) 119. ↑
17. Bowstead and Reynolds (n 6) art 1(1). ↑
18. Sealy & Hooley (n 5) 105-107. ↑
19. FMB Reynolds, ‘Agency: Theory and Practice’ (1978) 94 LQR 224, 235. ↑
20. Freeman & Lockyer (n 2) 503 (Diplock LJ). ↑
21. ibid 502-503. ↑
22. Ibid 503; Munday (n 2) 71. ↑
23. Rama Corpn Ltd v Proved Tin & General Investments Ltd [1952] 2 QB 147, 149 (Slade J). ↑
24. Munday (n 2) 71. ↑
25. FMB Reynolds, ‘Agency: Theory and Practice’ (1978) 94 LQR 224, 235. ↑
26. China-Pacific SA v Food Corpn of India (The Winson) [1982] AC 939, 958-959 (Lord Diplock). ↑
27. ibid 959. ↑
28. Sealy and Hooley (n 10) 144-147. ↑
29. Partnership Act 1890, s 5. ↑
30. Mental Capacity Act 2005, ss 5-8; Sealy and Hooley (n 10) 148. ↑
31. Bowstead and Reynolds (n 6) paras 2-003 to 2-009; Hely-Hutchinson (n 14) 583. ↑
32. Freeman & Lockyer (n 2) 503 (Diplock LJ). ↑
33. Watteau v Fenwick [1893] 1 QB 346. ↑
34. Freeman & Lockyer (n 2) 502 (Diplock LJ). ↑
35. ibid. ↑
36. ibid. ↑
37. ibid 503; Rama Corpn Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147, 149 (Slade J). ↑
38. ibid. ↑
39. Armagas Ltd v Mundogas SA [1986] AC 717, 777 (Lord Keith). ↑
40. Hely-Hutchinson (n 14) 551. ↑
41. Freeman & Lockyer (n 2) 503 (Diplock LJ). ↑
42. Bowstead and Reynolds (n 6) para 8-029. ↑
43. Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] AC 717. ↑
44. ibid 720-721. ↑
45. Ibid 777 (Lord Keith). ↑
46. First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194, 195–196. ↑
47. ibid 204 (Steyn LJ). ↑
48. ibid 196. ↑
49. I Brown, ‘The agent’s apparent authority: paradigm or paradox?’ (1995) JBL 360, 372. ↑
50. Sealy & Hooley (n 5) 142; Bowstead and Reynolds (n 6) para 3-005. ↑
51. Watteau (n 3) 346-347. ↑
52. ibid. ↑
53. ibid 348 (Wills J). ↑
54. ibid. ↑
55. Sealy & Hooley (n 5) 142; FMB Reynolds, ‘Agency: Theory and Practice’ (1978) 94 LQR 224, 235. ↑
56. Sealy & Hooley (n 5) 140. ↑
57. Ibid 141; Rhodian River Shipping Co SA v Halla Maritime Corp [1984] 1 Lloyd’s Rep 373, 378-379. ↑
58. Sign-O-Lite Plastics Ltd v Metropolitan Life Insurance Co (1990) 73 DLR (4th) 541, 548 (Wood JA). ↑
59. Rhodian River (n 20) 378-379 (Bingham J); Sealy & Hooley (n 5) 142. ↑
60. Watteau (n 3) 348. ↑
61. ibid 349 (Wills J ↑
62. Bowstead and Reynolds (n 6) para 8-077. ↑
63. Ibid para 9-001. ↑
64. Montgomerie (n1). ↑
65. ibid. ↑
66. Bowstead and Reynolds (n 6) para 9-006. ↑
67. Universal Steam Navigation Co Ltd v James McKelvie & Co [1923] AC 492, 507 (Viscount Cave LC). ↑
68. Bills of Exchange Act 1882, s 23. ↑
69. Bowstead and Reynolds (n 6) para 9-014. ↑
70. Bowstead and Reynolds (n 6) para 9-013. ↑
71. The Santa Carina [1977] 1 Lloyd’s Rep 478, 490 (Kerr J). ↑
72. Bowstead and Reynolds (n 6) para 8-078. ↑
73. Keighley (n 4). ↑
74. No representation is possible where the principal is undisclosed. ↑
75. Bowstead wolves and Reynolds (n 6) para 8-082. ↑
76. Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199, 207. ↑
77. ibid. ↑
78. Keighley (n 4). ↑
79. ibid 251 (Lord Lindley). ↑
80. Krebs (n 5) 207, discussing Boardman v Phipps [1967] 2 AC 46. ↑
81. ibid 211-212. ↑
82. FMB Reynolds, ‘Practical Problems of the Undisclosed Principal Doctrine’ (1983) 36 CLP 119, 119-120. ↑
83. ibid 120. ↑
84. ibid 119. ↑
85. F Pollock, Principles of Contract (4th edn, Stevens and Sons 1885) 117. ↑
86. AL Goodhart and CJ Hamson, ‘Undisclosed Principals in Contract’ (1932) 4 CLJ 320, 320. ↑
87. Siu Yin Kwan (n 5) 207. ↑
88. C-H Tan, ‘Undisclosed principals and contract’ (2004) 120 LQR 480, 485. ↑
89. Krebs (n 5) 223. ↑
90. Montgomerie & Co v United Kingdom Mutual Steamship Association Ltd [1891] 1 QB 370, 371 (Wright J). ↑
91. Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, 503 (Diplock LJ); RJC Munday, Agency: Law and Principles (3rd edn, OUP 2016) 69. ↑
92. Watteau v Fenwick [1893] 1 QB 346; D Fox and others, Sealy and Hooley’s Commercial Law: Text, Cases, and Materials (6th edn, OUP 2020) 142. ↑
93. Keighley, Maxsted & Co v Durant [1901] AC 240, 246 (Lord Macnaghten). ↑
94. Thomas Krebs, ‘Agency Law for Muggles: Why There is no Magic in Agency’ in Andrew Burrows and Edwin Peel (eds), Contract Formation and Parties (OUP 2010) 205; FMB Reynolds, ‘Practical Problems of the Undisclosed Principal Doctrine’ (1983) 36 CLP 119. ↑
95. PG Watts (ed), Bowstead and Reynolds on Agency (21st edn, Sweet & Maxwell 2017) art 1(1); American Law Institute, Restatement of the Law of Agency (3rd edn, 2006) para 1.01. ↑
96. Munday (n 2) 17. ↑
97. Freeman & Lockyer (n 2) 503-505 (Diplock LJ); Bowstead and Reynolds (n 6) para 8-029. ↑
98. Sealy and Hooley (n 3) 103-104. ↑
99. ibid 104. ↑
100. Krebs (n 5). ↑
101. ibid 214. ↑
102. Krebs (n 5); Sealy and Hooley (n 10) 105-107. ↑
103. Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549, 583; First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194, 196; Munday (n 2) 49-104. ↑
104. Montgomerie (n 1) 371. ↑
105. Keighley (n 4) 251 (Lord Lindley); FMB Reynolds (n 5) 119. ↑
106. Bowstead and Reynolds (n 6) art 1(1). ↑
107. Sealy & Hooley (n 5) 105-107. ↑
108. FMB Reynolds, ‘Agency: Theory and Practice’ (1978) 94 LQR 224, 235. ↑
109. Freeman & Lockyer (n 2) 503 (Diplock LJ). ↑
110. ibid 502-503. ↑
111. Ibid 503; Munday (n 2) 71. ↑
112. Rama Corpn Ltd v Proved Tin & General Investments Ltd [1952] 2 QB 147, 149 (Slade J). ↑
113. Munday (n 2) 71. ↑
114. FMB Reynolds, ‘Agency: Theory and Practice’ (1978) 94 LQR 224, 235. ↑
115. China-Pacific SA v Food Corpn of India (The Winson) [1982] AC 939, 958-959 (Lord Diplock). ↑
116. ibid 959. ↑
117. Sealy and Hooley (n 10) 144-147. ↑
118. Partnership Act 1890, s 5. ↑
119. Mental Capacity Act 2005, ss 5-8; Sealy and Hooley (n 10) 148. ↑
120. Bowstead and Reynolds (n 6) paras 2-003 to 2-009; Hely-Hutchinson (n 14) 583. ↑
121. Freeman & Lockyer (n 2) 503 (Diplock LJ). ↑
122. Watteau v Fenwick [1893] 1 QB 346. ↑
123. Freeman & Lockyer (n 2) 502 (Diplock LJ). ↑
124. ibid. ↑
125. ibid. ↑
126. ibid 503; Rama Corpn Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147, 149 (Slade J). ↑
127. ibid. ↑
128. Armagas Ltd v Mundogas SA [1986] AC 717, 777 (Lord Keith). ↑
129. Hely-Hutchinson (n 14) 551. ↑
130. Freeman & Lockyer (n 2) 503 (Diplock LJ). ↑
131. Bowstead and Reynolds (n 6) para 8-029. ↑
132. Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] AC 717. ↑
133. ibid 720-721. ↑
134. Ibid 777 (Lord Keith). ↑
135. First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd’s Rep 194, 195–196. ↑
136. ibid 204 (Steyn LJ). ↑
137. ibid 196. ↑
138. I Brown, ‘The agent’s apparent authority: paradigm or paradox?’ (1995) JBL 360, 372. ↑
139. Sealy & Hooley (n 5) 142; Bowstead and Reynolds (n 6) para 3-005. ↑
140. Watteau (n 3) 346-347. ↑
141. ibid. ↑
142. ibid 348 (Wills J). ↑
143. ibid. ↑
144. Sealy & Hooley (n 5) 142; FMB Reynolds, ‘Agency: Theory and Practice’ (1978) 94 LQR 224, 235. ↑
145. Sealy & Hooley (n 5) 140. ↑
146. Ibid 141; Rhodian River Shipping Co SA v Halla Maritime Corp [1984] 1 Lloyd’s Rep 373, 378-379. ↑
147. Sign-O-Lite Plastics Ltd v Metropolitan Life Insurance Co (1990) 73 DLR (4th) 541, 548 (Wood JA). ↑
148. Rhodian River (n 20) 378-379 (Bingham J); Sealy & Hooley (n 5) 142. ↑
149. Watteau (n 3) 348. ↑
150. ibid 349 (Wills J ↑
151. Bowstead and Reynolds (n 6) para 8-077. ↑
152. Ibid para 9-001. ↑
153. Montgomerie (n1). ↑
154. ibid. ↑
155. Bowstead and Reynolds (n 6) para 9-006. ↑
156. Universal Steam Navigation Co Ltd v James McKelvie & Co [1923] AC 492, 507 (Viscount Cave LC). ↑
157. Bills of Exchange Act 1882, s 23. ↑
158. Bowstead and Reynolds (n 6) para 9-014. ↑
159. Bowstead and Reynolds (n 6) para 9-013. ↑
160. The Santa Carina [1977] 1 Lloyd’s Rep 478, 490 (Kerr J). ↑
161. Bowstead and Reynolds (n 6) para 8-078. ↑
162. Keighley (n 4). ↑
163. No representation is possible where the principal is undisclosed. ↑
164. Bowstead and Reynolds (n 6) para 8-082. ↑
165. Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199, 207. ↑
166. ibid. ↑
167. Keighley (n 4). ↑
168. ibid 251 (Lord Lindley). ↑
169. Krebs (n 5) 207, discussing Boardman v Phipps [1967] 2 AC 46. ↑
170. ibid 211-212. ↑
171. FMB Reynolds, ‘Practical Problems of the Undisclosed Principal Doctrine’ (1983) 36 CLP 119, 119-120. ↑
172. ibid 120. ↑
173. ibid 119. ↑
174. F Pollock, Principles of Contract (4th edn, Stevens and Sons 1885) 117. ↑
175. AL Goodhart and CJ Hamson, ‘Undisclosed Principals in Contract’ (1932) 4 CLJ 320, 320. ↑
176. Siu Yin Kwan (n 5) 207. ↑
177. C-H Tan, ‘Undisclosed principals and contract’ (2004) 120 LQR 480, 485. ↑
178. Krebs (n 5) 223. ↑