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A Study on the Principal-Agent Relationship in English Law
Civil law,Common Law,English law,Equity,Agency,Principal and Agent inter se,internal relationship,rights and duties,fiduciary duties,
|Publication Year :||2019|
不同於歐陸法系強調代理「外部關係」之討論，英美法系著重的是代理之「內部關係」。反映在保護對象上，歐陸法系代理重視代理人與第三人之保護，然英美法系下傳統上認為本人較需受到保護，故於代理內部關係中，對代理人課予許多義務，除了普通法上課予之履行義務及注意義務外，衡平法上更課予 “Fiduciary Duty” 之義務，以保護本人之權益。
Agency is a legal notion recognized in both civil law and common law systems, both of which are based on their own distinct historical influences and legal theories, a divergence that has developed considerable differences in their approach to the concept of agency.
The theory of agency in civil law features the conceptual separation of mandate (mandate, Aufrag), i.e., the contract between the principal and agent, from the abstract authority (représentation, Vollmacht), i.e., the power the agent has in order to enter into contracts on behalf of his principal. Yet the common law has adopted a relatively general and unitary concept of agency – “agency” can be said to represent the body of rules under which one person acts for another. Thus, the common law does not stress the existence of a mandate, the agent’s external power is simply derived from the internal relationship, which is not necessarily contractual, but can be based on an agreement.
Under the above explanation, in common law, the basic formation of agency is treated as being that in which one party, the principal, consents that another party, the agent, shall act on his behalf, and the agent consents so to act. This consent is said to confer authority onto the agent, enabling him to change the legal position of another. Since the agent has the special power to bind and entitle his principal, the agent is also subject to the duties imposed by equity on fiduciaries, appropriate to the powers that the agent can exercise on the principal’s behalf.
Having been inspired by the common law, this thesis focuses on the “principal-agent relationship” in the English Law, discussing the nature of the agency relationship and the internal and external aspects of agency, mainly investing the rights and duties of principal and agent inter se.
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