ABSTRACT
An ‘agent’ or ‘agency’ can be explained in philosophical terms, that is by agency the individual’s legal personality is multiplied in space. Attempts to refine such a definition have also multiplied, but in confusion. This confusion was apparent in the nineteenth century and continues today. No word is, perhaps, more commonly and constantly abused than the word ‘agent’. A person may be spoken of as an ‘agent’ and, no doubt, in the popular sense of the word may properly be said to be one, though when it is attempted to suggest that he is an agent under such circumstances as create the legal obligations attaching to agency, this use of the word is only misleading. Generally an ‘agent’ is a person who is employed not merely to act on behalf of another (a common application of the term), but has the authority to create legal relations by contract between his principal and a third party, provided that authority is a mirror image, which if necesary can be reduced, of the personal authority of that principal. An agent can do nothing which his client cannot. His own contract with a client is, in its simplest form, a transference of legal powers. Once an agent has brought his principal into contractual relations with another, he drops out and his principal sues or is sued on the contract. Thus an architect may act as agent under the RIBA Conditions of Appointment to employ consultants on behalf of the client. The client will be vicariously liable for a tort committed by an architect or any other professional in like position in the course of his agency, provided that it comes within the scope of his authority. The client’s liability may not be mitigated by the fact that it was a reasonable discharge of his obligations to employ an architect as agent, unlike the case of the architect who is retained as an independent contractor. It is wise for the appointment or retention of any professional to be recorded in writing. Indeed, it is recommended by the RIBA that an architect’s appointment be in writing, preferably on its Memorandum of Agreement and Schedule of Services and Fees, setting out and defining clearly the extent of the architect’s authority. It is a point of reference which will determine whether or not an architect contracting as agent has gone beyond his terms of reference and thus incurred personal liability. In the case of oral contracts, the personal liability of an agent is a question of inference; whether or not the agent himself intended to incur personal liability may be deduced or inferred from the surrounding circumstances. Q. When will I be considered an agent? It is a question of fact whether there is an agency. Equally, it is a question of fact when any other relationship exists. But it is a question of law what the legal mind will interpret that as being. There need be no reference to any type of legal relationship in any contract of employment; nor needs there to be a written contract, only a verbal one. As a matter of principle, any legal relationship is determined by the legal interpretation of the facts and not by the label which the parties choose to put on them. The contract of employment need not be found to be a ‘sham’ if the statement of the relationship set out there is not the same as the court might find. Though in truth it is perhaps a mere fiction or façade hiding the reality of the situation. The ‘label’ which is attached to the contract-Z i.e. a contract of service or a contract for services —by the client and the professional is not a conclusive factor in deciding what the true nature of it is. Thus where A acts as agent, P (the principal) becomes liable to T (a third party) not only where A is an employee, but also where he is an independent contractor, for in the law of agency P’s liability does not depend on A’s precise employee status. P can be liable whether A is employed or self-employed, provided that he is an agent.
