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12 Cards in this Set
- Front
- Back
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A contract of mandate
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• It arises when one party, the mandator, concludes a contract with another, the mandatary, in terms of which the mandatary undertakes to perform a mandate (that is, a commission or a task) for the mandator.
• The commission need not be undertaken gratuitously. • The mandatary may only perform juristic acts in the name of the mandator if authorised to represent him or her. • This authority will frequently be agreed upon in the contract of mandate, or may be inferred from it. • The mandate may entail the performance of a single act, or be a general mandate to conduct all the affairs of the mandator. • It may also be a mandate to conduct all business of a specified nature. |
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Duties of the mandator:
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• To compensate the mandatary for expenses. - The mandator must indemnify him or her in respect of liability which may arise from the execution of the mandate.
- The parties may agree that this duty of the mandator be excluded. - The mandator cannot refuse to pay expenses incurred by the mandatary merely because he or she would not personally have incurred them. - The mandatary has a lien in respect of goods acquired or received in the performance of his or her task, until he or she is compensated or indemnified by the mandator. • To pay the mandatary the agreed remuneration. - The mandatary must pay the mandatary the remuneration on which they have expressly or tacitly agreed. - The amount may be agreed, or may be determined according to a formula. - When there is no agreement on amount of remuneration, it will be determined according to customary or reasonable rate |
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Duties of the mandatary:
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• To carry out the mandate.
• The duty not to exceed the terms of the mandate. • To perform the mandate personally. • To act with care and skill. • To act in good faith. • To render accounts. • To account |
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Termination of Mandate |
Death Sequestration Incapacity Revocation by the Mandator Renunciation by the Mandatary |
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The Law of Agency |
The Concept of agency, or representation, arises when one person, the agent or representative, concludes a juristic act for or on behalf of another, who is called the principal, with the result that a legal tie arises between the principal and the 3rd party. Any rights acquired & duties assumed by the agent are the Principles not the agent |
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Agency Requirements |
1. the Principle must exist 2. The agent must have authority to perform the act 3. Agent must make it clear he is not the principal. |
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Agency Authority |
-Authorization can be formal or tacit (silent agreement) -Appointment of office (cc) -Delegation of authority |
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Estoppel |
If the principal has culpably created the false impression that another person has the authority to conclude certain juristic acts on his or her behalf, and the third party to whom this representation has been made acts to his or her detriment on the strength of that impression, the principal can be prohibited by law from denying the authorisation. • The requirements necessary to found liability on the grounds of estoppel are the following:- The principal must, by his or her words, have represented to the third party that the ‘agent’ had authority to contract on his or her behalf. The representation of authority must be attributable to the principal, or to someone for whose conduct he or she is responsible. - Although the representation need not have been intended to mislead, it must have been of such a nature that it could reasonably have been expected to mislead the third party. - The third party must have acted on the strength of the representation to his or her detriment. The third party cannot rely on estoppel if he or she was unaware of the representation, or if the third party knew that the agent was not authorised, or if he or she is by law deemed to know the scope of the agent’s authority. |
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Ratification |
If a person purports to act on behalf of another without authority to do so, the principal is not liable. But if the principal ratifies the particular transaction concluded by the agent the Principal becomes liable. Ratification is the validation ab initio by a person of a juristic act concluded on his or her behalf by another who did not have the authority to do so. The ratification can be expressed or tactic Requirements 1. The Principal must have been in existance when the agent purported to act on his behalf. 2. The agent must have made it clear he was acting on the Principals behalf. 3. Ratification must take place within a reasonable time 4. The person who ratifies must, however have knowledge of the particular juristic act which is being ratified/ |
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Duties of the Agent |
- to follow instruction - To exercise care & diligence - Act in good faith * No secret profits * Conflict of interest * Disclosure of confidential information * Delegation of authority - Duty to account properly |
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Duties of the Principle |
- Payment of remuneration - Reimbursement of expanses - Indemnity - Personal Liability |
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Doctrine of Undisclosed Principal |
The Principle is entitled, once the representation has reached consensus with the 3rd party, to step in to the agents shoes as the real party to the contract. Requirements - The agent must be authorised - The agent must intend to act on behalf of the principal - Agent must fail to disclose the Principal On discovery the 3rd party can hold either the principal or agent liable Does not apply when 1. More than one principal 2. The contract precludes it 3. The 3rd party wanted the contract with the agent specifically |
