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Commercial Law Notes - Course
Summary Exam Notes 2025
Commercial Law (University of Notre Dame)
1) What is an agency?
(a) Authority between Principal and Agent -> a dealing/contract
created between Agent and Third Party -> which creates legal
relations between Principal and Third Party
2) Was authority given?
(b) Expressly – written via agency agreement, orally, poa’s
(c) Impliedly – via past relationships involving similar dealings
i. Incidental authority = implied tasks which must also be
performed in regards to what was asked of expressly
(e.g. Expressly asked to act as an agent and sell
house – it is incidental/implied that a brochure
needs to be made)
ii. Usual authority = acts that the agent of a certain type
would usually have the authority to do (e.g. Hold a
particular status – in their usual authority to
perform such tasks by means of holding that status)
3) Ostensible Authority
– Authority which arises from the acts/words conducted by the P
to the TP -> exception which does not require express
or implied authority -> looks at the representation being
sent out to the world
(a) Representation made
i. Making it known; or
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ii. Allowing people to enter into a contract for a
certain period of time -> Freeman v Buckhurst
(b) Conduct constituting representation of authority
i. Entrusting indicia of title to an agent = Court held that
where a signed transferof land with parties’ names left blank
is given to an agent, the world is told that this
agent can insert names into this title to complete the
transaction, hence ostensible authority -> Egan v Ross
(1928)
ii. Possession of property for the purposes of sale
-> Motor Finance & Trading Co Ltd v Brown [1928]
iii. Holding a particular position = Director acting as
a managing director
iv. Within the ordinary scope of business or custom of
the particular agent
v. Permitting business card to be used -> Prospect
Industries v Anscor Pty Ltd
[2003] QSC 296
Vi. Previous course of dealings
(c) Who can make a representation?
i. Representation must be made by the P to the TP
– cannot be made by the A ->
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and
Addressing Co
Pty Ltd (1975)
ii. In re to permitting business cards to be used:
a. If made by the company itself – rep made to
the world = ostensible authority
b. If agent makes the card but company is aware –
rep made to the world = ostensible authority
(d) To whom must the representation be made
i. Madedirectly to TP who has relied upon it; or
ii. Can be made publicly (e.g. Website)
(e) Reliance by the third party
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i. Third party was not aware of the representation, did not
believe it or knew or had the power to know the
truth, the principal cannot be held liable ->
helyhutchinson v Brayhead
(f) Detriment to the third party
i. Where a third party has enteredinto a contract or
arrangement to their detriment, it is sufficient to
establish detriment -> Egan v Ross (1928)
(g) Consequences
i. Principal is bound by the acts of the agent to
the third party
ii. Principal may be able to recover from the agent for
damages and breach of duty
iii. Principal will be liable for the agent’s actions in fraud
acting within the scope of the ostensible authority
4) Ratification
(a) A enters into contract on behalf of P, but existence of
P is not disclosed to TP ->
Kwan v Eastern Insurance Co Ltd
i. Can still be held bound
ii. Must have enteredwith intention A can be sued and may
be sued
iii. Any defence of the TP against the A is available
against the P
(b) The identity of the parties is material to the third party
(c) Terms of contract cannot state or imply that the parties to
it are the only principles
5) Doctrine of Undisclosed Principal
(a) Post contract/dealing formed by A to TP on behalf of
P
(b) Elements -> Firth v Staines
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Commercial Law Notes - Course
Summary Exam Notes 2025
Commercial Law (University of Notre Dame)
1) What is an agency?
(a) Authority between Principal and Agent -> a dealing/contract
created between Agent and Third Party -> which creates legal
relations between Principal and Third Party
2) Was authority given?
(b) Expressly – written via agency agreement, orally, poa’s
(c) Impliedly – via past relationships involving similar dealings
i. Incidental authority = implied tasks which must also be
performed in regards to what was asked of expressly
(e.g. Expressly asked to act as an agent and sell
house – it is incidental/implied that a brochure
needs to be made)
ii. Usual authority = acts that the agent of a certain type
would usually have the authority to do (e.g. Hold a
particular status – in their usual authority to
perform such tasks by means of holding that status)
3) Ostensible Authority
– Authority which arises from the acts/words conducted by the P
to the TP -> exception which does not require express
or implied authority -> looks at the representation being
sent out to the world
(a) Representation made
i. Making it known; or
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ii. Allowing people to enter into a contract for a
certain period of time -> Freeman v Buckhurst
(b) Conduct constituting representation of authority
i. Entrusting indicia of title to an agent = Court held that
where a signed transferof land with parties’ names left blank
is given to an agent, the world is told that this
agent can insert names into this title to complete the
transaction, hence ostensible authority -> Egan v Ross
(1928)
ii. Possession of property for the purposes of sale
-> Motor Finance & Trading Co Ltd v Brown [1928]
iii. Holding a particular position = Director acting as
a managing director
iv. Within the ordinary scope of business or custom of
the particular agent
v. Permitting business card to be used -> Prospect
Industries v Anscor Pty Ltd
[2003] QSC 296
Vi. Previous course of dealings
(c) Who can make a representation?
i. Representation must be made by the P to the TP
– cannot be made by the A ->
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and
Addressing Co
Pty Ltd (1975)
ii. In re to permitting business cards to be used:
a. If made by the company itself – rep made to
the world = ostensible authority
b. If agent makes the card but company is aware –
rep made to the world = ostensible authority
(d) To whom must the representation be made
i. Madedirectly to TP who has relied upon it; or
ii. Can be made publicly (e.g. Website)
(e) Reliance by the third party
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i. Third party was not aware of the representation, did not
believe it or knew or had the power to know the
truth, the principal cannot be held liable ->
helyhutchinson v Brayhead
(f) Detriment to the third party
i. Where a third party has enteredinto a contract or
arrangement to their detriment, it is sufficient to
establish detriment -> Egan v Ross (1928)
(g) Consequences
i. Principal is bound by the acts of the agent to
the third party
ii. Principal may be able to recover from the agent for
damages and breach of duty
iii. Principal will be liable for the agent’s actions in fraud
acting within the scope of the ostensible authority
4) Ratification
(a) A enters into contract on behalf of P, but existence of
P is not disclosed to TP ->
Kwan v Eastern Insurance Co Ltd
i. Can still be held bound
ii. Must have enteredwith intention A can be sued and may
be sued
iii. Any defence of the TP against the A is available
against the P
(b) The identity of the parties is material to the third party
(c) Terms of contract cannot state or imply that the parties to
it are the only principles
5) Doctrine of Undisclosed Principal
(a) Post contract/dealing formed by A to TP on behalf of
P
(b) Elements -> Firth v Staines
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