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GAZETTE

DECEMBER 1988

An agent is not contractually

en t i t l ed to r e i mbu r s ement or

indemnity in respect of breaches of

duty

32

unless the principal ratifies

the breaches. Such an agent may

be able to maintain an action in

restitution.

Lage -v- Siemens Bros.

& Co. Ltd

33

is an example of

where an agent was held not to be

en t i t l ed to r e i mbu r s ement or

indemnity where it was in breach

of its duties to the principal.

McKinnon J. held that because the

agents had been in breach of their

duties to the principal they were

not entitled to their right to

indemnity.

An agent is not contractually

en t i t l ed to r e i mbu r s ement or

indemnity insofar as s/he exceeds

authority or acts w i t hout any

au t ho r i ty at all

34

(unless the

p r i nc i pal r a t i f i es t he a g e n t 's

actions).

On the basis of agency law, an

agent

is

not

e n t i t l ed

to

reimbursement or indemnity in

respect of an act contrary to the

criminal law.

35

There are a number

of cases which hold that an agent

can claim indemnity where s/he

cannot demonstrate that s/he was

aware of the illegality and that the

act was not manifestly illegal.

36

While the agent is not entitled to

reimbursement or indemnity in

respect of criminal acts, the

position w i t h respect to civil

wrongs is not so clear-cut.

The agent is not entitled to

reimbursement or indemnity in

respect of gaming and wagering

transactions. More generally, it has

been held that an agent is not

e n t i t l ed to r emu n e r a t i on or

indemnity where the transaction is

contrary to public policy.

37

It is submitted that an agent is

not entitled to reimbursement or

indemnity for a loss if it is due to

t he a g e n t 's o wn de f au lt or

negligence, even if the loss is

incurred wh i le ac t i ng for the

principal.

38

In

Lewis -v- Samuel

39

the agents (solicitors) were held not

to be entitled to enforce their claim

for indemnity from the principal

(the client) for work done (drafting

documents) because it was done

negligently.

Stoljar recalls an impo r t ant

restriction: " [ an agent] cannot

claim an indemnity if and where he

ac ts me r e ly o f f i c i o u s l y. For

example, where a broker contracts

on behalf of [the principal] but [the

principal] withdraws, the broker

cannot by a purely voluntary pay-

ment make himself Ithe principal's!

creditor; in fact, to be entitled to an

indemnity, the agent must show

some sort of compulsion, such as

a usage on the Stock Exchange."

40

En f o r c eme nt

(a) A c t i on

The agent may enforce the rights

of reimbursement and indemnity by

way of action for the amount owing

by the principal.

(b) Lien

The agent may enforce the rights

of reimbursement and indemnity by

exercising his or her lien

41

on

goods wh i ch the agent lawfully

acquired. A possessor lien may be

defined as the legal right of one

person (such as a creditor) to retain

lawful possession of the property

of another person (such as a

debtor) until a claim (such as a

debt) by the person in possession

against the owner is satisfied. Liens

are very important in the area of

agency. Silvertown has written:

Whe re t he r e l a t i on s h ip of

principal and agent exists, the

agent will have a valid lien on the

moveable property including

money in respect of all valid

claims he may have in his

capacity of agent for earnings

and commi ss i on, or

money

advanced or liabilities

property

incurred

arising

during

the

course of his agency,

provided:

(i)

there is no term of a

c o n t r a ct b e t we en t he

principal and agent which

is inconsistent w i th the

right of lien; and

(ii) that the moveable property

or money was not delivered

to the agent w i th express

stipulations inconsistent

w i th the right of lien.

42

(c) Se t - o ff

Where the agent is sued by the

principal (or anyone c l a imi ng

through the principal then the

agent may enforce the rights of

reimbursement and indemnity by

was of set-off.

43

The author wishes to express his

gratitude to Robert A. Pearce and

Irene Lynch, of the Law Faculty at

University College Cork for their help-

ful comments and suggestions in

respect of an earlier draft of this article

INCORPORATED

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OVERNIGHT

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FOOTNOTES

1. See

Merryweather

-v- Nixan

(1799) 8

TR 186;

Wilson -v- Milner

(1810) 2

Camp 452;

Betts v- Gibbins

(1834) 2

A & E 57.

2. See

Moore -v- Moore

(1611) 1 Bulst.

169;

Thacker -v- Hardy (1878) 4 QBD

685.

3. See Moore -v- Moore

(1611) 1 Bulst.

169;

Adamson -v-Jarvis

(1827) 4 Bing

66;

Frixione

-v-Taglaiafero

& Sons

(1856) 10 Moo PCC 175.

4. See

Adams -v-Jarvis

(1827) 4 Bing 66;

Thacker -v-Hardy

(1878) 4 QBD 685;

Adamson -v-Morgan & Co.

119241 1 KB

751; Hichens, Harrison, Woolston & Co.

-v- Jackson & Sons

119431 1 A11 ER

128;

Anglo Overseas Transport Ltd. -v-

Titan Industrial

Corporation

(United

Kingdom)

Ltd.

119591 2 Lloyd's Rep.

152.

5. This does not operate where the money

due to the principal is held on trust: see

Stumore -v- Campbell & Co.

118921 1

QB 314;

Re Mid-Kent

Fruit

Factory

118961 1 Ch 567.

6.

Re Mid-Kent Fruit Factory

[18961 1 Ch.

567.

7. See

Crean -v- Deane

119591 IR 347.

8.

Adamson -v- Jarvis

(1827) 4 Bing 66

at 72.

9. See

Henehan -v-Courtney

(1967) 101

ILTR 25;

Murphy, Buckley, Keogh -v- Rye

(Ireland) Ltd.

11971) IR 57;

O'Toole -v-

Palmer

[19431 Ir. Jur. Rep. 59.

10. At least the rights of reimbursement

and indemnity.

11. Estate agents may be entitled to seek

reimbursement of expenses n o t w i th

standing a failure to bring about con-

tracts between their clients (principals)

and third parties: but this depends on

the particular agency agreements:

Ber-

nard Thorpe & Partners -v

Flannery

(1977) 2 44 EG 129.

3 1 9