LAW ON AGENCY

Session No. 12

AGENCY
Agency, defined
By the contract of agency a person binds
himself to render some service or to do
something in representation or on behalf of
another, with the consent or authority of the
latter (Art. 1868)

Principles of agency
Contracts of agency are based on two important
principles: Whatever a person can do personally shall also be
allowed to be done through an agent except in case
of contracts involving personal services such as
painting, marriage, singing, etc.
He who does an act through a duly authorized agent
does it by himself i.e. the acts of the agent are
considered the acts of the principal.

Characteristics of agency
Consensual generally, a contract of agency is
perfected by mere consent. However, consent is
not required when the agency is created
by operation of law ( ex. agency by estoppel)
Agency by Estoppel - A situation in which
a reasonable person may assume
agency agreement exists when it does not.

 Nominate it has the name given by law

Preparatory it is a means by which other contracts may
be entered into
Principal it can stand by itself
Bilateral - the parties are bound reciprocally to each
other. However, if agency is without compensation, the
agency is unilateral.
Onerous it is presumed to be for compensation, unless
there is a proof to the contrary
Commutative the parties give and receive almost
equivalent values

Capacity of the Parties:

Principal the person whom the agent
represents and from whom he derives authority.
He may be a natural or a juridical person
He must be capacitated. The rule is if a person is
capacitated to act for himself or his own right, he can
act through an agent.
Note: The agent is not liable where he was ignorant
of the principals incapacity

 Agent he who acts for and represents the

principal from whom he derives authority
Insofar as the third persons are concerned, it is
enough that the principal is capacitated
Insofar as his obligations to his principal are
concerned, the agent must be able to bind himself.
But as an agent, some mental capacity is
necessary, so, those who are absolutely
incapacitated (ex. Insane persons, demented)
cannot be agents.

Effects of incapacity of one of the

parties
Principal is incapacitated, agent is capacitated
contracts entered into by agent are void. The rule is
that the principal must be capacitated. What the
principal cannot do, neither do the agent.
Principal is capacitated, agent is incapacitated the
contract of agency between the principal and agent
is voidable, since one of the contracting parties is
incapable of giving consent. The contract entered
into by the agent in behalf of the principal, as long
as it is within the authority given to him, binds the
principal

Essential elements of agency

Consent of the parties to establish the
relationship
Object of the contract is the execution of
a juridical act in relation to third persons
Agent acts as a representative and not for himself
and
Agent acts within the scope of his authority

Acts That Cannot Be Done By Agent

Acts which are purely personal in nature. The
following acts can be delegated to another
Making a will
A director cannot be represented by proxy during
vote meeting as the right to vote is a personal right
of the director
The right to vote, right to run for public office, and
similar electoral rights
Marital and parental rights

 Acts that are prohibited by law such as

criminal or illegal acts
An alien prohibited by the Constitution to acquire
agricultural land in the Philippines cannot appoint a
Filipino agent to do such act. This constitutes
circumvention of law.
A person cannot delegate to other to do a criminal
act, such as committing robbery, killing a person or
engaging in illegal gambling

Nature of Relationship between Principal

andAgent:
The relationship between the principal and agent is
fiduciary in nature that is based on mutual trust
confidence. Hence, the following is expected to be
observed by the agent:
Agent is estopped from asserting interest adverse to
his principal
Agent must not act as an adverse party
Agent must not use or disclose secret information
Agent must give notice of material facts

Effects of knowledge of the agent

Knowledge of the agent is imputed to the
principal even though the agent never
communicated.
Exceptions:
Where the interests of the agent are adverse to those
of the principal;
Where the person claiming the benefit of the rule
colludes with the agent to defraud the principal

How is agency created?

Agency by appointment this is usually made by
giving a person a power of attorney
Agency by ratification - a situation in which a
person inaccurately claims to be an agent for
another person and conducts some act in that
capacity, but which the principal (who is not
actually a principal) later accepts and recognizes.

 Agency by Estoppel - a situation in which a

reasonable person may assume
agency agreement exists when it does not.
Agency by Necessity a situation in which one
person acts as another person's agent outside the
scope of a previous agreement in order to
prevent harm to the principal

Classifications of Agency
As to manner of creation
Express agent has been actually authorized by the principal,
either orally or in writing
Implied - agency is implied from the acts of the principal, in
the following instances:
from his silence or lack of action or
his failure to repudiate the agency knowing that another
person is acting on his behalf without authority, or
from the acts of the agent which carry out the agency, or
from his silence or inaction according to the circumstances

As to character
Gratuitous - agent receives no compensation for
his services
Onerous - agent receives compensation for his
services
In the absence of contrary stipulation, the contract
of agency is presumed onerous

As to extent of business of the principal

General agency comprises all the business of
the principal
Special agency comprises one or more specific
transactions

As to authority conferred
Couched in general terms agency is created in
general terms and is deemed to comprise only acts
of administration in the name and representation of
the principal.
This is true even if the principal should state that:
He withholds no power, or
that the agent may execute such acts as he may consider
appropriate, or
even though the agency should authorize a general and
unlimited management

 Couched in specific terms agency is created to do

specific acts.
Under Art. 1878, special power of attorney is required
for the performance of the following specific acts:
To make such payments as are not usually considered
as acts of administration;
To effect novations which put an end to obligations
already in existence at the time the agency was
constituted;

 To compromise, to submit questions to arbitration,

to renounce the right to appeal from a judgment, to
waive objections to the venue of an action or to
abandon a prescription already acquired;
To compromise means parties make reciprocal
concession to avoid or put an end to litigation
To waive any obligation gratuitously;
To enter into any contract by which the ownership
of an immovable is transmitted or acquired either
gratuitously or for a valuable consideration;

 To make gifts, except customary ones for charity

or those made to employees in the business
managed by the agent;
To loan or borrow money, unless the latter act be
urgent and indispensable for the preservation of
the things which are under administration;
To lease any real property to another person for
more than one year;
To bind the principal to render some service
without compensation;

 To bind the principal in a contract of partnership;

To obligate the principal as a guarantor or surety;
To create or convey real rights over immovable
property;
To accept or repudiate an inheritance;
To ratify or recognize obligations contracted before
the agency;
Any other act of strict dominion

Forms of Agency
Appointment of an agent may be oral or
written, except when the law requires a specific
form. (ex. agents authority to sell of real
property or any interest therein must be in
writing, otherwise the sale is void.)

Who is a broker?
He is a person who negotiates contracts
relative to property in behalf of others and for
compensation/fee.

When is a broker entitled to compensation?

Whenever he brings to his principal a party who
is able and willing to take the property, and enter
into a valid contract upon the terms named by the
principal, although the particulars may be arranged
and the matter negotiated and completed between
the principal and the purchaser directly.
However, a broker is never entitled to commission
for unsuccessful efforts.

How are contracts ofagency construed?

Contracts of agency, as well as general powers of
attorney, must be interpreted in accordance with the
language used by the parties.
The real intention of the parties is primarily
determined from the language used and gathered
from the whole instrument.
In case of doubt, resort must be had to the situation,
surroundings and relations of the parties. The
intention of the parties must be sustained rather
than defeated

Acceptance of agency by the agent

Express when the agent accepts the agency
either orally or in writing
Implied acceptance made by agent implied
from his acts which carry out the agency, or from
his silence or inaction according to the
circumstances.

Power of Attorney, defined

An instrument in writing by which one
person, as principal, appoints another as his
agent and confers upon him the authority to
perform certain specified acts or kinds of acts on
behalf of the principal.
Its primary purpose is to evidence agents
authority to third parties within whom the agent
deals.

Attorney-In-Fact, defined
One who is given authority by his principal to
do a particular act not of a legal character.
The term is, in loose language, used to
include agents of all kinds, but in its strict sense,
it means an agent having a special authority
created by a deed

Construction of Power of Attorney

It must be strictly construed and strictly pursued, and
held to grant only those specified powers in the instrument,
unless when strict construction will destroy the very purpose
of the power.
Examples:
The power to sell does not include the power to mortgage;
The power to mortgage does not include the power to sell;
Special power to compromise does not authorize submission
to arbitration

Distinctions between a General Agent and

a Special Agent
General Agent this is agency couched in
general terms, and can only do merely acts of
administration even if the principal should state
that he withholds no power.
The agent may execute such acts as he may
consider appropriate. The agency should
authorize a general and unlimited management.

 Special agent this agency is couched in specific

terms and the agent can only perform acts
specifically stated in the instrument cresting the
agency, usually referred to as Special Power of
Attorney.
Special Power of Attorney is an
instrument in writing by which one person, as
principal, appoints another as his agent and
confers upon him the authority to perform
certain specified acts or kinds of acts on behalf of
the principal

Ways of giving notice of the agency

By special information such as letter
addressed to specified person or persons. The
person appointed as agent is considered such
with respect to the person to whom it was given.
By public advertisement such as by
newspapers, signs, leaflets, posters and
billboards. The agent is considered such with
regard to any person

Ways of revocation of the agency

When appointment was made by special information
revocation must be also by special information, which is
giving notice such as letter to specified person/s of the
revocation of agency. However, it may also be revoked by
notice in a daily newspaper, provided it can be proven that 3rd
persons in question read the revocation.
When appointment was made by public advertisement
revocation must also be done by public advertisement
However, any revocation shall be effective against any
person who has actual knowledge thereof whether the
appointment was by special information or by public
advertisement

Effects of acts of agent to the principal

Agent acting within the scope of his authority
the principal is bound. The following acts are
deemed acting within the scope of principals
authority:
Acts conducive to the accomplishment of the
purpose of agency
Acts performed in a manner more advantageous to
the principal than that specified to him

 Agent acting beyond the scope of his authority

this is unenforceable against the principal in
whose name the contract was entered into,
unless the principal ratifies it.
Agent acting in his own name the following are
the effects:
the principal has no right of action against the
persons with whom the agent has contracted;
neither have such persons against the principal.

Obligations of an agent
Obligation of a person who accepts agency
To carry out the agency. The agent is bound to
Act with utmost good faith & loyalty for the
furtherance of principals interests
Obey principals instructions
Exercise reasonable care
To be held liable for the damages which, through his
nonperformance, the principal may suffer.
To finish the business already begun on the death of
the principal, should delay entail any danger

Obligation of an agent who declines an

agency
In case a person declines an agency, he is
bound to observe the diligence of a good father
of a family in the custody and preservation of the
goods forwarded to him by the owner until the
latter should appoint an agent or take charge of
the goods.

Specific obligations of an agent

To advance the necessary funds, should there be
a stipulation that to do so, except when the
principal is insolvent
To act in accordance with the instructions of the
principal. In the absence of principals
instruction, to do all that a good father of a
family would do, as required by the nature of the
business

However, the agent may depart from principal

instruction in the following cases:
Theres a sudden emergency
If the instructions are ambiguous
If the departure is so insubstantial that it does not
affect the result and the principal suffers no
damage thereby

Authority vs. instruction

Authority

Instruction

Sum total of the powers committed by

the principal to the agent

Contemplates only private rule of

guidance to the agent

Relates to the subject which the agent

is empowered to act

Relates to the manner or mode of

agents action

Made known to the third persons the

agent is dealing

Not expected to be made known to

third persons

Limitation of authority as appearing in No significance to third person

the instrument creating the agency is
enforceable to third person who have
knowledge of it

When agent has a right to disobey the

principals instructions
When the instruction calls for the performance of
illegal acts
Where he is privileged to do so to protect his
security in the subject matter of the agency

 Not to carry out an agency if its execution would

manifestly result in loss or damage to the principal
To be liable for damages if, there being a conflict
between his interests and those of the principal, he
should prefer his own. This is for the reason that the
agency is fiduciary in nature that is based on trust
and confidence

Not to borrow the money of the principal without

the latters consent, if he has been empowered to
be the lender at the current rate of interest.

 He is bound to render an account of his transactions

and to deliver to the principal whatever he may have
received by virtue of the agency, even though it may
not be owing to the principal.
Every stipulation exempting the agent from the
obligation to render an account shall be void.
If the agent fails to deliver and instead converts or
appropriates for his own use the money or property
belonging to his principal, he may be charged with
ESTAFA

When obligation to account not

applicable:
If the agent acted only as a middleman with the
task of merely bringing together the vendor and
the vendees.
If the agent had informed the principal of the
gift/bonus/profit he received from the purchaser
and his principal did not object thereto
Where a right of lien exists in favor of the agent.

 To be liable to interest on the sums he has

applied to his own use from the day on which he
did so, and on those which he still owes after the
extinguishment of the agency (Art. 1896)
To be responsible not only for fraud, but also for
negligence, which shall be judged with more or
less rigor by the courts, according to whether the
agency was or was not for a compensation

Liabilities of an agent who appoints a

substitute (sub-agent)
When agent is not prohibited to appoint a
substitute
The agent may appoint a substitute if the principal has
not prohibited him from doing so; but he shall be
responsible for the acts of the substitute.
The principal may furthermore bring an action against
the substitute with respect to the obligations which the
latter has contracted under the substitution

When agent is authorized to appoint a substitute

Principal designates the person who will act as
substitute the agent is not liable for the acts of the
substitute. The substitute himself will be liable to the
principal for his own acts
Principal does not designate the person to be
appointed as substitute. the agent is not liable for
the acts of the substitute, unless the agent appointed a
substitute who is
Notoriously incompetent; or
Insolvent

When agent is prohibited to appoint a substitute

All acts of the substitute appointed against the
prohibition of the principal shall be void (Art.
1892)

Liability of two or more agents if they have

been appointed simultaneously
Liability is joint. Under Art. 1984, it states that the
responsibility of two or more agents, even though
they have been appointed simultaneously, is not
solidary, if solidarity has not been expressly
stipulated
When it has been agreed upon that their liability is
solidary, each of them shall be responsible for the nonfulfillment of agency, and for the fault or negligence of
his fellows agents, except in case when the fellow
agents acted beyond the scope of their authority

Liability of agent if he contracts in the name of

principal
General rule: The agent who acts as such is not
personally liable to the party with whom he contract.
Exceptions: the agent shall be personally liable in the
following cases:
If he expressly binds himself in this case, both the
agent and the principal shall be liable to the party with
whom the agent has contracted
If he exceeds the limits of his authority without giving
such party sufficient notice of his powers

 Other party was aware of the agents

acting beyond the limit of his authority
The agent did not undertook to secure the
principal's ratification, but failed agent is NOT
LIABLE
Reason: the third person took the risk of nonratification by principal

The agent undertook to secure the principal's

ratification, but failed agent is LIABLE
Reason: the agent breached his promise to the third
person

Rights and obligations of third party

who have contracted with an agent
who has exceeded his authority
Written authority prevail - So far as third
persons are concerned, an act is deemed to have
been performed within the scope of the agent's
authority, if such act is within the terms of the
power of attorney, as written, even if the agent
has in fact exceeded the limits of his authority
according to an understanding between the
principal and the agent (Art. 1900)

 Effect of ratification of the principal - A third

person cannot set up the fact that the agent has
exceeded his powers, if the principal has ratified,
or has signified his willingness to ratify the
agent's acts (Art. 1901)

 Third person may require agent to produce

document of agency - A third person with whom
the agent wishes to contract on behalf of the
principal may require the presentation of the
power of attorney, or the instructions as regards
the agency.
Private or secret orders and instructions of the
principal do not prejudice third persons who have
relied upon the power of attorney or instructions
shown them (Art. 1902)

Commission Agent:
One whose business is to receive and sell goods
for a commission and who is entrusted by the
principal with the possession of goods to be sold,
and usually selling in his own name.
Obligations of a Commission Agent:
Responsible for the goods received by him, as
described in the consignment, unless upon receiving
them he should make a written statement of the
damage and deterioration suffered by the same

 If goods are of the same kind and mark but

belonging to different owners, make a distinction
by counter marks and designate the merchandise
respectively belonging to each principal
He cannot, without consent of the principal, sell
on credit;
Should he do, principal may demand payment in
cash, but the commission agent entitled to any
interest/benefit which may result from such sale

Del credere commission

An additional commission received by a factor in
consideration of his engaging to insure to his
principal not only the solvency of the debtor, but the
punctual discharge of the debt
If an agent receiving guarantee commission (a del
credere agent), he bears the risk of collection and pay
the principal the proceeds of the sale on the same
terms agreed upon with the purchaser
He is liable for damages if agent does not collect the
credits of his principal at the time when they become
due and demandable, UNLESS he proves, that he
exercised due diligence for that purpose.

Doctrine of agency by necessity

Actually, an agency can never be created by
necessity; what is created is additional authority in an
agent appointed and authorized before the emergency
arose.
The existence of emergency or other unusual
conditions may operate to invest in an agent authority to
meet the emergency, provided: (P-U-R-E)
The agents enlarged authority is exercised for the
principals protection
The agent is unable to communicate with principal;
The means adopted are reasonable under the
circumstances;
The emergency really exists

Obligations of the principal

Comply with all the obligations agent contracted
in representation of the principal
Advance sums necessary for the execution of the
agency, when agent so requests;
Liable for reimbursement regardless of the
undertakings success whenever agent had
advanced & has no fault; includes interest

 Reimburse the agent for all advances made by

him provided the agent is free from fault
Indemnify the agent for all the damages which
the execution of the agency may have caused the
latter without fault or negligence on his part.
Pay the agent the compensation agreed upon or
the reasonable value of the latters services

When principal is not liable for expenses

incurred by agent
If the agent acted in contravention of the principal's
instructions, unless the latter should wish to avail himself of
the benefits derived from the contract;
When the expenses were due to the fault of the agent;
When the agent incurred them with knowledge that an
unfavorable result would ensue, if the principal was not aware
thereof;
When it was stipulated that the expenses would be borne by
the agent, or that the latter would be allowed only a certain
sum

Liability when there are two or more

principals
If two or more persons have appointed an agent
for a common transaction or undertaking, they shall
be solidarily liable to the agent for all the
consequences of the agency. (Art. 1915)
Requisites for solidary liability of principals:
There are 2 or more principals
The principals have all concurred in the appointment
of the same agent
The agent is appointed for a common transaction or
undertaking

Right of retention of agent

The agent may retain in pledge the things which are
the object of the agency until the principal:
Reimburse him the sums necessary for the execution
of the agency advanced by the agent, even if the
business or undertaking was not successful, provided
the agent is free from all fault. The reimbursement
shall include interest on the sums advanced, from the
day on which the advance was made and pays the
indemnity
Indemnify the agent for all the damages which the
execution of the agency may have caused the latter,
without fault or negligence on his part

Rule where 2 persons contract separately

with agent and principal
Two persons may contract separately with the
agent and the principal with regard to the same
thing. If the two contracts are incompatible with
each other, the law on double sale shall apply.

Extinguishment of Agency
Modes of extinguishment of agency (E-D-W-A-R-D)
By the expiration of the period for which the agency was constituted
By the death, civil interdiction, insanity or insolvency of the principal or
of the agent
Reason: both parties in the contract must be capacitated to enter into a
contract.

By the withdrawal of the agent

By the accomplishment of the object or purpose of the agency
By its revocation
By the dissolution of the firm or corporation which entrusted or
accepted the agency

Presumption of Continuance of Agency

It means that when once shown to have
existed, an agency relation will be presumed to
have continued, in the absence of anything to
show its termination. For an agency to continue,
parties must be
Present,
Capacitated and
Solvent

Modes of extinguishing an agency

By agreement of the parties
Subsequent acts of the parties which may be
either:
a. By the act of both parties or by mutual consent
b. By the unilateral act of one of them

* revocation when done by principal

* renunciation when done by agent
By operation of law

What happens of the subject matter of the

agency is lost or destroyed?
In the absence of any agreement by the
parties to the contrary, the loss or destruction of
the subject matter of the agency terminates the
agents authority to deal with reference to it

Exceptions:
If it is possible to substitute other material for
that which was destroyed without substantial
detriment to either party
if the destroyed subject matter was not in fact
essential to the contract
in case of partial loss or destruction

Revocation by principal
Revocation refers to the recall of some power,
authority, or thing granted, or destroying or
making void of some deed that had existence
until the act of revocation made it void. (Black
Law Dictionary)
The principal may also revoke the agency at will,
and compel the agent to return the document
evidencing the agency, unless in the following
circumstances:

 The agency coupled with interest (stipulation

pour autrui )
When a bilateral contract depends upon the
agency
When the agency is the means of fulfilling an
obligation already contracted
When a partner is appointed as manager of a
partnership in the contract of partnership and his
removal from the management is unjustifiable

Revocation of two or more principals

When two or more principals have granted a
power of attorney for a common transaction, any
one of them may revoke the same without the
consent of the others (Art. 1925)

Kinds of revocation
Express revocation when made orally or in writing
Implied revocation when it can be inferred from
the act/s of the principal as in the following cases:
Principal appoints a new agent for the same business
or transaction, only if there is incompatibility
effective as between the principal and the agent only if
communicated to the agent;
does not prejudice rights of third persons acting in good
faith without knowledge of the revocation

 Principal directly manages the business entrusted to

the agent, dealing directly with third persons. But if
the purpose of the principal is only to assist the
agent, the latters authority is not deemed revoked

A general power of attorney is revoked by a

special one granted to another agent, as regards
the special matter involved in the latter.

Principals liability for damages

despite revocation
Even if there was no time fixed for the
continuance of the agency, but the agent can
prove that the principal acted in bad faith by
revoking the agency in order to avoid the
payment of commission about to be earned, the
principal can be held liable for damages

Necessity of Notice ofRevocation

As to the agent - express notice always necessary; sufficient
notice if the party to be notified actually knows, or has reason
to know, a fact indicating that his authority has been
terminated/suspended; revocation without notice to the agent
will not render invalid an act done in pursuance of the
authority
As to third persons express notice necessary
As to former customer - actual notice must be given to them
because they always assume the continuance of the agency
relationship
As to other persons - notice by publication is enough

Withdrawal by the agent

Agent may withdraw from the agency at
anytime, by giving due notice to the principal.
The principal cannot compel the agent to do
against his will as this would tantamount to
involuntary servitude. Withdrawal of agent also
means renunciation.

Form of renunciation
It is not always necessary for the agent to
renounce the agency expressly. He can do so
impliedly, such as:
Where he has conducted himself in a manner
incompatible with his duties as agent
When he abandons the object of his agency and
acts for himself in committing a fraud upon his
principals
When he files a complaint against the principal
and adopts an antagonistic attitude towards him

Obligation of an agent who

withdraws from the agency
If the principal should suffer any damage by reason of
the withdrawal, the agent must indemnify him therefor,
unless the agent should base his withdrawal upon the
impossibility of continuing the performance of the
agency without grave detriment to himself
He must continue to act until the principal has had
reasonable opportunity to take the necessary steps to
meet the situation

Death of the principal

As a rule, death of the principal extinguishes
the agency. However, the agency is not
extinguished in the following circumstances:
If the agency is coupled with an interest
If the act of the agent was executed without the
knowledge of the death of the principal and the
third person who contracted with the agent acted
in good faith
To avoid damage

 If it has been constituted in the common interest

of the principal and of the agent, or in the interest
of a third person who has accepted the stipulation
in his favor. This refers to stipulation pour autrui

Stipulation pour autrui - refers to a

contract or provision in a contract that confers a
benefit on a third-party beneficiary
NOTE: A stipulation pour autrui gives the thirdparty beneficiary a cause of action against the
promisor for specific performance

Death of the agent

Death of the agent extinguishes the agency. If the
agent dies, his heirs must
notify the principal thereof, and
in the meantime adopt such measures as the
circumstances may demand in the interest of the
latter

Can the heirs continue the agency?

NO. Agency calls for personal services on the part
of the agent and is based on mutual trust and
confidence between the parties; rights &
obligations are not transmissible

 end