Dear Andrew,
Thanks for your further comment and sorry if in trying to cover all
the possible situations, I've caused confusion.
I agree with you on your point 1.
Clearly where the agent knows that a sub-agent who is advising the
principal has a conflict of interest in that transaction, he would
have a duty to disclose that to the principal. In the context of
secret commissions, there seems to be some authority for the
proposition that the payer of the commission cannot defend the
transaction on the basis that he believed the recipient would disclose
the payment (thereby avoiding any conflict). I do wonder how that rule
(if it is good law) fits in with the law on dishonest assistance?
ON your point 2, I guess I was thinking of cases like Hilton v Barker
Booth and Eastwood, Specter v Agita and the duty of an agent
todisclose all relevant knowledge which they realize is of
importance/interest to their principal. I guess this is more relevant
where the principal has 2 independent agents, rather than in
situations where there is a chain, principal, agent and sub-agent.
Hopefully this makes sense - if not please do let me know and I'll try
to clarify.
Many thanks
Ger
On 1/26/16, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:
> Dear Ger,
>
> 1. If S (however improperly designated) is acting on P's business on the
> say-so of A, isn't it going to be very difficult to argue that he's not
> a sub-agent of P? This isn't so unfair as you might think. If S doesn't
> know of P's existence, presumably P won't be able to sue him (as against
> A) if with A's permission he commits a BFD?
>
> 2. Doesn't this depend on the precise relations between A and P (i.e.
> whether they are sufficiently proximate and/or intimate give rise to a
> duty of care / information on A's part)?
>
> Best wishes
>
> Andrew
>
> On 26/01/16 14:59, Gerard Sadlier wrote:
>> Dear Andrew,
>>
>> Thanks for the thought - I guess that would depend on whether there
>> was vicarious liability for breach of fiduciary duty?
>>
>> Suppose though that either:
>> 1. The party which was under the conflict (to whom it is inappropriate
>> to refer as S in this context) though an agent of P was not a
>> sub-agent of A? or
>> 2. The party who learned of the conflict (to whom it is inappropriate
>> to refer as A in this context) was in fact not P's agent?
>>
>> Kind regards
>>
>> Ger
>>
>> On 1/26/16, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:
>>> Might not an agent be liable automatically for his subagent's BFD in the
>>> same way that he is liable for the sub's incompetence?
>>>
>>> Andrew
>>>
>>> On 26/01/16 13:59, Gerard Sadlier wrote:
>>>> Dear all,
>>>>
>>>> I'd be very grateful for any guidance on cases or academic authority
>>>> on the following hypothetical:
>>>>
>>>> Suppose that A acts as agent for P (the principal) in a transaction.
>>>> In the course of that transaction, A comes to learn that S, through
>>>> whom P deals with A has a conflict.
>>>>
>>>> Does A have a duty to tell P? If so, is that duty in contract, tort or
>>>> fiduciary in character?
>>>>
>>>> Suppose further that S's conflict is created by A, who offers
>>>> commissions to S for directing P's business to A, which A presumably
>>>> believes that P is aware of but of which P is not in fact aware?
>>>>
>>>> Kind regards
>>>>
>>>> Ger
>>>>
>>>>
>>> --
>>>
>>> --
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> *Andrew Tettenborn*
>>> /Professor of Commercial Law, Swansea University/
>>>
>>> Institute for International Shipping and Trade Law
>>> School of Law, University of Swansea
>>> Richard Price Building
>>> Singleton Park
>>> SWANSEA SA2 8PP
>>> Phone 01792-602724 / (int) +44-1792-602724
>>> Cellphone 07472-708527 / (int) +44-7472-708527
>>> Fax 01792-295855 / (int) +44-1792-295855
>>>
>>>
>>>
>>> *Andrew Tettenborn*
>>> /Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/
>>>
>>> Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
>>> Ysgol y Gyfraith, Prifysgol Abertawe
>>> Adeilad Richard Price
>>> Parc Singleton
>>> ABERTAWE SA2 8PP
>>> Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
>>> Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527
>>> Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
>>>
>>>
>>>
>>>
>>> ISTL <
http://www.swansea.ac.uk/law/istl/>
>>>
>>> See us on Twitter:@swansea_llm <
https://twitter.com/swansea_llm>
>>> Read the IISTL Blog: iistl.wordpress.com <
https://iistl.wordpress.com/>
>>>
>>>
>>>
>>> /Disclaimer: This email (including any attachments) is for the use of
>>> the intended recipient only and may contain confidential information
>>> and/or copyright material. If you are not the intended recipient, please
>>> notify the sender immediately and delete this email and all copies from
>>> your system. Any unauthorized use, disclosure, reproduction, copying,
>>> distribution, or other form of unauthorized dissemination of the
>>> contents is expressly prohibited./
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>
> --
>
> --
>
>
>
>
>
>
>
>
> *Andrew Tettenborn*
> /Professor of Commercial Law, Swansea University/
>
> Institute for International Shipping and Trade Law
> School of Law, University of Swansea
> Richard Price Building
> Singleton Park
> SWANSEA SA2 8PP
> Phone 01792-602724 / (int) +44-1792-602724
> Cellphone 07472-708527 / (int) +44-7472-708527
> Fax 01792-295855 / (int) +44-1792-295855
>
>
>
> *Andrew Tettenborn*
> /Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/
>
> Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
> Ysgol y Gyfraith, Prifysgol Abertawe
> Adeilad Richard Price
> Parc Singleton
> ABERTAWE SA2 8PP
> Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
> Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527
> Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855
>
>
>
>
> ISTL <
http://www.swansea.ac.uk/law/istl/>
>
> See us on Twitter:@swansea_llm <
https://twitter.com/swansea_llm>
> Read the IISTL Blog: iistl.wordpress.com <
https://iistl.wordpress.com/>
>
>
>
> /Disclaimer: This email (including any attachments) is for the use of
> the intended recipient only and may contain confidential information
> and/or copyright material. If you are not the intended recipient, please
> notify the sender immediately and delete this email and all copies from
> your system. Any unauthorized use, disclosure, reproduction, copying,
> distribution, or other form of unauthorized dissemination of the
> contents is expressly prohibited./
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>