Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.9

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
The Third ◽  
The Third Party ◽  
Do So ◽  
As If

This commentary focuses on Article 2.2.9 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning ratification. Art 2.2.9 provides that an act by an agent that acts without authority or exceeds its authority may be ratified by the principal. On ratification the act produces the same effects as if it had initially been carried out with authority. The third party may, by notice to the principal, specify a reasonable period of time for ratification. If the principal does not ratify within that period of time it can no longer do so. This commentary discusses the prerequisites of ratification, the requirements for ratification, effects of ratification, and burden of proof relating to ratification.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.6

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
The Third ◽  
The Third Party ◽  
As If

This commentary focuses on Article 2.2.6 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the liability of an agent acting without or exceeding its authority. Art 2.2.6 stipulates that an agent that acts without authority or exceeds its authority is, failing ratification by the principal, liable for damages that will place the third party in the same position as if the agent had acted with authority and not exceeded its authority. However, the agent is not liable if the third party knew or ought to have known that the agent had no authority or was exceeding its authority. This commentary discusses the extent of a false agent's liability, the third party's knowledge of agent's lack of authority, and the burden of proof required in this regard.

Ch.5 Content, third party rights and conditions, s.2: Third party rights, Art.5.2.4

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
The Third ◽  
Contractual Relationship ◽  
The Third Party

This commentary focuses on Article 5.2.4 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning defences of the promisor against the promisee and against the beneficiary. Art 5.2.4 stipulates that the promisor may assert against the beneficiary all defences which the promisor could assert against the promisee. The phrase ‘all defences’ has to be read as ‘all defences based on the contract from which the third party derives its right, but not those based on other relationships between the promisor and the promisee’. The promisor has to prove the existence of a defence against the promisee arising out of the contractual relationship which confers a right upon the beneficiary. The burden of proof is on the beneficiary if it wants to argue that the parties agreed not to make the promisor's defences available against the beneficiary.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.8

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Default Rule ◽  
Agency Relationship ◽  
The Third ◽  
Delegation Of Authority ◽  
The Third Party

This commentary focuses on Article 2.2.8 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning sub-agency. In most countries, the default rule is that the agent is not permitted to delegate its authority. This rule is generally based on the confidential nature of the agency relationship. Art 2.2.8 stipulates that an agent has implied authority to appoint a sub-agent to perform acts which it is not reasonable to expect the agent to perform itself. This commentary discusses the requirements of sub-agency, the consequences of delegation of authority, cases where the sub-agent affects the legal relations of the third party, and burden of proof relating to sub-agency.

scholarly journals A Critical Appraisal of Dismissals at the Behest of a Third Party: The Impact of the Constitutional Labour Rights

Obiter ◽  
2021 ◽  
Vol 42 (1) ◽  
pp. 105-125
Author(s):  
Tumo Charles Maloka
Keyword(s):  
Social Justice ◽  
Critical Appraisal ◽  
Third Party ◽  
Disciplinary Power ◽  
Security Services ◽  
The Third ◽  
Statutory Protection ◽  
The Third Party ◽  
The Impact ◽  
Do So

The pivotal judgments on dismissals at the behest of a third party – East Rand Proprietary Mines Ltd v UPUSA, Lebowa Platinum Mines v Hill, NUMSA v Hendor Mining Supplies a Division of Marschalk Beleggings (Pty) Ltd, TSI Holdings (Pty) Ltd v NUMSA, NUPSAW obo Mani v National Lotteries Board and NUMSA v High Goal Investments t/a Chuma Security Services – deeply implicate discrimination in all its manifestations, accountability, gendered precariousness and social justice. This contribution explores the focal questions raised in recent times concerning the fairness of a dismissal at the instance of a third party. First, there are fundamental points relating to the constitutional and statutory protection of security of employment. Secondly, there are those familiar problems often associated with substantive and procedural fairness that surface here under the guise of questioning the disciplinary power of the employer. In this context, inroads into managerial prerogative and disciplinary procedure are amplified where there has been no fault on the part of the employee and no breakdown of the trust relationship, or where the employee has been disciplined, but not dismissed and the employer did not want to terminate the employee’s employment but was coerced by the third party to do so. Thirdly, there is the thorny issue of the reason behind the third-party demand and the related issue of intolerability caused by the targeted employee. And finally, there is the issue of striking in support of a demand for dismissal of a co-employee.

Ch.5 Content, third party rights and conditions, s.2: Third party rights, Art.5.2.2

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Legal Capacity ◽  
Legal Certainty ◽  
The Third ◽  
The Third Party

This commentary focuses on Article 5.2.2 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning the attributes of the third party. The provision aims to strike a balance between commercial flexibility and legal certainty. Art 5.2.2 stipulates that the beneficiary must be identifiable with adequate certainty by the contract but need not be in existence at the time the contract is made. It furthers the autonomy of the original parties by allowing them to accord a right to future persons. A lack of identifiability affects the validity of the contract between the original parties. The burden of proof that the third party is identifiable with adequate certainty by the contract is on the party asserting that a contract in favour of a third party has been validly concluded, usually the beneficiary or the promisee. This commentary discusses the rationale of Article 5.2.2, existence and identity of the third party, and legal capacity of the third party.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.7

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
Reasonable Time ◽  
Conflict Of Interests ◽  
The Third ◽  
The Third Party

This commentary focuses on Article 2.2.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning conflict of interests. Art 2.2.7 stipulates that if a contract concluded by an agent involves the agent in a conflict of interests with the principal of which the third party knew or ought to have known, the principal may avoid the contract. However, the principal may not avoid the contract if the principal had consented to, or knew or ought to have known of, the agent's involvement in the conflict of interests; or if the agent had disclosed the conflict of interests to the principal and the latter had not objected within a reasonable time. It is for the principal to show both the existence of the conflict of interests and that the third parry knew or ought to have known about it. Once the principal has discharged that burden of proof, it is then for the third party to establish that the principal consented to, knew of, or ought to have known of the conflict.

Disquieting experiences and conversation

2020 ◽  
Vol 30 (6) ◽  
pp. 864-877
Author(s):  
Lívia Mathias Simão
Keyword(s):  
Third Party ◽  
The Third ◽  
30Th Anniversary ◽  
Hermeneutic Inquiry ◽  
The Third Party ◽  
Other World ◽  
Do So

On the occasion of the 30th anniversary of Theory & Psychology, my aim in this article is to widen the discussion about one of the issues I consider foundational in the approach of I–other–world relations in subjectivation processes, that is to say, that of the disquieting experience, which we have been developing in the ambit of semiotic–cultural constructivism in psychology. First, I will make an exposition of the main aspects that characterise the notion of disquieting experience. I shall then seek to deepen some of the relations between disquieting experience, hermeneutic inquiry, and conversation. In order to do so, I will make use of articles published in Theory & Psychology that are fundamental to this deepening, due to leading us to the role of the third party in subjectivation processes.

binds a company and its members under the terms of the memorandum and articles of association. In each case, there is separate provision for these varieties of contract under other legislation. Apart from the provisions of the 1999 Act, the third party’s rights arising under some other rule of law will remain unaffected. Thus, if an existing common law or equitable exception to the doctrine of privity of contract applies in favour of T, he may rely on that instead of invoking the provisions of the 1999 Act. This will be particularly important in cases in which T is unable to prove that he has relied on the term in the contract between A and B or in any other case in which the restrictive provisions of s 1 and s 2 might work against T. Thus, if T can establish the existence of a trust of the promise made in his favour or if he has an action in the tort of negligence or if some other statutory exception applies in his favour, T will still be able to avail himself of that alternative route. Although s7(1) only refers to T’s right under s 1, it must follow that the provisions of ss 2 and 3 are also inapplicable, since both of these provisions expressly state that they apply where T has relied on s 1. It has been seen above that at common law there is nothing to prevent the promisee from enforcing a term expressed to be for the benefit of the third party, if he wishes to do so. This position is preserved under s 4 of the 1999 Act.

1995 ◽  
pp. 805-806
Keyword(s):  
Rule Of Law ◽  
Common Law ◽  
Third Party ◽  
Alternative Route ◽  
The Third ◽  
The Third Party ◽  
Privity Of Contract ◽  
A Company ◽  
Made In ◽  
Do So

Ch.5 Content, third party rights and conditions, s.2: Third party rights, Art.5.2.3

2015 ◽  
Author(s):  
Vogenauer Stefan
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
The Third ◽  
The Third Party ◽  
The Right

This commentary focuses on Article 5.2.3 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning a contract's exclusion and limitation clauses. According to Art 5.2.3, the conferment of rights in the beneficiary includes the right to invoke a clause in the contract which excludes or limits the liability of the beneficiary. There has to be express agreement of the parties to give the benefit of an exclusion or limitation clause to the beneficiary. This would be the case in the ordinary ‘Himalaya clause’, contained in bills of lading. The burden of proof is on the third party that invokes the clause excluding or limiting liability.

Ch.2 Formation and authority of agents, s.2: Authority of agents, Art.2.2.5

2015 ◽  
Author(s):  
Krebs Thomas
Keyword(s):  
Burden Of Proof ◽  
Third Party ◽  
The Third ◽  
The Third Party

This commentary focuses on Article 2.2.5 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning agents acting without, or exceeding their, authority. Art 2.2.5 stipulates that where an agent acts without authority or exceeds its authority, its acts do not affect the legal relations between the principal and the third party. However, where the principal causes the third party reasonably to believe that the agent has authority to act on behalf of the principal and that the agent is acting within the scope of that authority, the principal may not invoke against the third party the lack of authority of the agent. This commentary discusses apparent authority and its requirements and consequences, along with the burden of proof relating to apparent authority.

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