THE UNAUTHORISED AGENT: PERSPECTIVES FROM EUROPEAN AND COMPARATIVE LAW. Ed by Danny Busch and Laura J Macgregor Cambridge: Cambridge University Press (www.cambridge.org), 2009. xxxiv + 480 pp. ISBN 97805212863889. £70.

Published date01 January 2011
DOI10.3366/elr.2011.0010
AuthorRoderick Munday
Pages148-149
Date01 January 2011

The law of agency, Busch and Macgregor correctly point out, is a “much under-researched area” (1). Full-blown comparative studies in the law of agency, it could be added, are truly rarae aves. If only for this reason, the present volume is to be warmly welcomed. Its focus is three important but problematic areas of agency law: apparent authority, ratification, and the falsus procurator (what English law would term third parties’ actions for breach of warranty of authority). The book contains essays from specialist national writers: alongside accounts of English and US law, we are offered studies of four Civil Law jurisdictions (France, Germany, Belgium and Holland), of two so-called “mixed” systems (Scotland and South Africa) and of two international texts that would legislate in matters of agency: The Principles of European Contract Law (PECL) and the UNIDROIT Principles of International Commercial Contracts. Accompanying Deborah DeMott's scrupulous account of the US Restatement (3d) of Agency, there is a deft essay by Francis Reynolds in which, taking the Restatement as his springboard, he differentiates the various approaches to these problems adopted around the Common Law world. This volume, then, is both a rich and authoritative source of information.

From a comparatist's angle, however, two notes of caution need to be sounded. First, the chosen subject matter of the book creates an oddly harmonious picture. As anyone who has taught, or written about, Common Law and Civil Law forms of agency comparatively will know, the great rift valley that renders meaningful comparison in this commercial discipline so treacherous is the distinction continental systems draw between direct and indirect agency. Such a distinction may mean little to many common lawyers. By focussing on the agent who has acted without authority, this cardinal distinction is adeptly bypassed. At the outset, the editors acknowledge as much, calling direct agency in Common Law, Civil Law and mixed systems “the obvious area for comparison” (7). Suffice to say, had they extended their area of inquiry, this study would probably have been deprived of this uncharacteristic euphony. Secondly, from the first sentence we are told that this work was conceived “in a café in the beautiful surroundings of Trento” (xi). Trento, of course, is the clue. The editors subscribe to the “common core” approach to European law, variously designating this “the heart of the matter” (386) and “the principal aim...

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