Unauthorised agency in German law

Schmidt-Kessel, Martin; Baide, Ana Barbara

doi:10.1017/cbo9780511575914.006

Cited by 16 publications

(2 citation statements)

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“…It should be noted that the line between apparent and implied authority is particularly blurred in Germany. In the legal doctrine of this country, Duldungsvollmacht, which, as mentioned previously, is described as one of the types of apparent authority, is also regarded as part of implied authority (Schmidt-Kessel & Baide, 2009). This conclusion can be drawn from the fact that in English sources Duldungsvollmacht is referred to as a type of constructive authority.…”

Section: Differences and Similarities Between Apparent And Implied Authoritymentioning

confidence: 81%

Interaction Between Apparent and Implied Authority in the Implementation of Sustainable Business Relatiohsips

Jurkevičius

Bublienė

2021

International Scientific Conference „Contemporary Issues in Business, Management and Economics Engineering"

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Purpose – to reveal the problems of apparent and implied authority in the context of sustainable business relationships. Research methodology – the research is conducted from a comparative perspective, explaining the problems of apparent and implied authority in selected jurisdictions. Findings – authors conclude that apparent authority is the exclusive remedy available only where a link has been established between the circumstances of the principal and the reasonable belief of the third party. Implied authority cannot be equated with apparent authority, although case law often does not distinguish between these two categories. Research limitations – due to limited scope, this article does not address the ratification of unauthorised agent’s actions and the liability of falsus procurator. Practical implications – the research reveals that implied authority derives from the factual circumstances in which the agent acts and must be regarded as part of the actual authority, which presupposes that, unlike in the case of apparent authority, the implied representation does not qualify as one of the cases of unauthorised agency. Originality/Value – the significance of this study is linked to the development of reasonable rules for the application of apparent and implied authority in order to safeguard the legitimate interests of all persons involved in this complex relationship.

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Section: Differences and Similarities Between Apparent And Implied Authoritymentioning

confidence: 81%

Interaction Between Apparent and Implied Authority in the Implementation of Sustainable Business Relatiohsips

Jurkevičius

Bublienė

2021

International Scientific Conference „Contemporary Issues in Business, Management and Economics Engineering"

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“…Paragraph 2, thus, requires actual or constructive knowledge. 108 In the latter case, contract interpretation and supplementation take place independent of the actual intent of the parties by conferring legal effect on an objective expectation. 109 Paragraph 2 requires that the trade usage should be widely known, and it must be regularly observed in a particular trade over a geographically large area to the extent that merchants in that trade are expected to have knowledge of such usage.…”

Section: A Cisgmentioning

confidence: 99%

The role and function of trade usage in modern international sales law

Coetzee¹

2015

Unif. Law Rev.

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Trade usage reflects consistent and uniform business practices that are regularly followed in a particular trade. Trade usage has always played an important role in international sales as is evidenced by the lex mercatoria, an a-national system of law that flourished as autonomous law in medieval times but lost its influence after the introduction of the nation state. Today, the existence of the law merchant and the role and function of mercantile custom are clouded in controversy. Regardless of that, trade usage still fulfils a normative function in contracts of sale, so much so that contractual parties are bound by trade usage even in the absence of real knowledge. But what is the rationale for this situation? And what converts a mere consistent trade practice into a binding usage? These are some of the questions that this article seeks to answer. Whether the normative function of trade usage is restricted to contract interpretation and supplementation or whether trade usage can operate independent of party agreement is not clear. The traditional position is that trade usage operates as implied terms of the contract. Lately, however, less emphasis is placed on the requirement of knowledge. International and regional uniform law projects increasingly seem to afford trade usage binding force once a usage is widely followed in international transactions in a particular trade or industry. This article analyses the role and function of trade usage in modern day international sales law with reference to the position under selected national legal systems as well as under various international and regional instruments.

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Constitutional Ratification without Reason

Lenowitz¹

2022

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This book focuses on constitutional ratification, the procedure in which a draft constitution is submitted by its creators to the people or their representatives in an up or down vote determining implementation. Ratification is increasingly common and routinely recommended by experts. Nonetheless, it is neither neutral nor inevitable. Constitutions can be made without it and when it is used it has significant effects. This raises the central question of the book: should ratification be recommended? Put another way: is there a reason for treating the procedure as a default for the constitution-making process? Surprisingly, these questions are rarely asked. The procedure’s worth is assumed, not demonstrated, while ratification is generally overlooked in the literature. In fact, this is the first sustained study of ratification. To address these oversights, this book defines ratification and its types, explains the procedure’s effects, conceptual origins, and history, and then concentrates on finding reasons for its use. Specifically, it builds up and analyzes the three most likely normative justifications. These urge the implementation of ratification because the procedure: enables the constituent power to make its constitution; fosters representation during constitution-making; or helps create a legitimate constitution. Ultimately, these justifications are found wanting, leading to the conclusion that ratification lacks a convincing, context-independent justification. Thus, experts should not recommend ratification as a matter of course, practitioners should not reach for it uncritically, and—more generally—one should avoid the blanket application of concepts from democratic theory to extraordinary contexts such as constitution-making.

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Unauthorised agency in German law

Cited by 16 publications

References 0 publications

Interaction Between Apparent and Implied Authority in the Implementation of Sustainable Business Relatiohsips

Interaction Between Apparent and Implied Authority in the Implementation of Sustainable Business Relatiohsips

The role and function of trade usage in modern international sales law

Constitutional Ratification without Reason

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