REMEDIES AVAILABLE TO PARTIES

CONTENTS

1.0      Introduction

2.0      Objectives

• Main Content
• Remedies Available to the Principal
• Remedies Available to the Agent

4.0      Conclusion

5.0      Summary

6.0      Tutor-Marked Assignment

7.0      References/Further Readings

INTRODUCTION

In every contractual situation there are bound to be infringement of the  right  of  the parties by themselves. This comes in the form of breach of the terms of the agreement between the contracting parties. It is usually followed by claims for damages in the law court.

OBJECTIVES

The main corpus of this unit is to bring to the knowledge of the learner the available remedies to the parties under an agency relationship where there is  a  breach  of  any  of the terms of the agreement by any of the parties.

MAIN CONTENT

Breach of an agency relationship may give rise to a claim  for  damages  or  other  remedies available to the innocent party which may  either  be  the  principal  or  the  agent. The remedies available to either party ma y depend on the terms of any relevant agreement, the type or nature of the breach and the surrounding circumstances. 

Remedies Available to the Principal 

In situations where the agent by some misconduct or otherwise commits a breach of a  term of his agency relationship with the principal, the latter may avail himself of one or more of a number of remedies stated below.

1. Dismissal: The principal may determine or bring the agency relationship to an end or otherwise dismiss the agent from his employment without notice.
2. Rescission and Damages: The principal may also rescind an y contract made on his behalf by the agent without authority  or  in breach of his duty and this may include claims for damages
3. Action for Account: The principal ma y take an action to compel the agent to render an account for all his dealings on his behalf, in respect of their agency relationship. This may also include an account for  all  money  or  property   of  the principal in his possession.
4. Action in Tort: The principal may in addition sue the agent for conversion where the latter has received property on his behalf and has misappropriated or misused it. He may also institute an action  for  negligence where such is in contravention of the agency agreement.
5. Private Prosecution: The principal may be entitled to and may take out private summons against the agent where the latter’s conduct, act or omission is criminal.

SELF ASSESSMENT EXERCISE 1

Enumerate and explain the various remedies available to a principal in an agency relationship.

Remedies Available to the Agent

Where  the  agency  relationship   is   established   by   contract   and   the  principal commits a breach of a term of his agency contract, the agent has most of the remedies ordinarily available to a contracting party under the general law of contract.

The law may imply certain remedies from the facts and circumstances of a particular agency case in some cases. Generally, in a case  of a  breach of an agency contract or a  term thereof. Both the principal and the agent are entitled to and may claim one or more of the following remedies:

3. Damages: The agent may sue the principal to recover any loss or injury he may have suffered as a result of the principal’s failure to perform any of his duties under the agency   This may  include  his  right   to   indemnity   or   re-imbursement and damages unless the parties agreed otherwise or the agent has waived or otherwise lost his right to sue.
4. Right of Set-Off: Whenever the principal institutes an action in a court of law against the agent, the latter may claim a right of set-off or counter-claim of engagement due to him from the principal by way of  remuneration,  indemnity  or  re-imbursement. This he must specifically do in his defense to the claims by the principal. 
5. Right of Lien: The agent also has a right of lien on the property, goods or chattels of his principal in his lawful possession or custody in respect of and up to the amount of  his claim for remuneration, losses, liabilities and expenses incurred lawfully and for advances made in favour of the principal. This is however subject to any agreement  between the parties. The law recognizes only two types of lien; the general and particular lien.
6. General Lien: This enables the agent of retain his principal’s property, chattel, or goods until any sum due to him from the principal is paid
7. Particular Lien:  This  only  enables  the  agent  to   retain  such property,  chattel or goods pending payment of any sums due in respect of that property, chattel or goods
8. Right of Stoppage in Transitu: Where the agent stand s towards his principal in the position of an unpaid seller of goods, he  may exercise this right against the goods of  his principal

This will arise where he bought the goods for his principal with his own money or otherwise incurs a personal liability to the seller for the price.

Other Remedies

1. The agent may demand an accounting by the principal where there is reciprocal indebtedness by the parties to each other.
2. The agent may be entitled to withhold further performance of the terms of his agency where there has been a continuing breach by the principal.
3. Where the   agent   becomes   possessed   of   property,   goods   or chattels or money to which conflicting claims have been made  by the  principal  and  a third party, he may claim relief by way of inter-pleader summons

SELF ASSESSMENT EXERCISE 2

Discuss the various remedies available to an agent against his principal where there is a breach of agency agreement by the principal.

CONCLUSION

Where there are rights, remedies usually follow. Therefore, it is right to state here that a remedy follows a breach. The available remedies, to both parties  under  an  agency situation have been well explained in this unit. It is expected that learners would have comprehended the available remedies in cases of breach.

SUMMARY

The remedies  available  to  both  the  principal  and  an  agent  under  an  agency agreement, as stated, are easy to understand and learners are expected to engage in further readings for judicial authorities on these issues.

TUTOR-MARKED ASSIGNMENT

The general rule that Remedies follow breach is applicable in an agency agreement.  Do  you agree?

REFERENCES/FURTHER READINGS 

Kingsley Igweike (1993). “Nigeria Commercial Law: Agency.” Jos, Nigeria: FAB Educational Books.

Markesinis and Munday.    (1986). “An Outline of Agency.” 2nd Edition. Pollock and Maitland. “The History of English Law,” Vol. 11.

Sir William Holdsworth, “A History of English Law,” Vol. IV.

Walker, D.W. (1980). “The Oxford Companion to Law.” London: Butterworths.

American Restatements, Second, Agency, Article.

Friedman,G.H.L.(1984).Law              of                   Agency,           7th  Edition.    London: Butterworths.