[1][2][3][4][5][6][7] Kerr states that, in legal contexts, the word "agent" is most commonly used of a person whose activities are concerned with the formation, variation or termination of contractual obligations, and that agency has a corresponding meaning.
[12][13] Although some representatives (such as public officials, company directors, guardians and curators) are often referred to loosely as agents, the current tendency is to reserve the term "agent" to denote a representative who is bound by contract with a principal to carry out a mandate and also authorised to create, alter or discharge legal relations for the principal.
[17][18] The idea eventually came to form part of Roman-Dutch law,[19][20][21][22] although it was not developed to the same extent as the modern principles of commercial agency in England and America.
[44][45][46] There is no objection in modern law to the remuneration of the mandatary, with the result that it is difficult to distinguish the contract of mandate from that of letting and hiring of work or services.
At other times, it is used to refer to the contractual relationship between the principal and agent: the so-called "contract of agency" that in reality is a species of mandate.
[68] In SA law of contract: "independent contractor" normally used to mean conductor operis—one who's obliged to produce certain finished work.
This is why, according to Kerr, description of IA as a locator operis, as in Colonial Mutual Life Assurance Society Ltd v Macdonald,[74][75] "is likely to cause confusion.
"[76] It is not clear from report in Smit v Workmen's Compensation Commissioner whether or not the appellant insurance agent was an IA or one who was obliged to make use of opportunities to be of service to his principal.
Nugent JA disagreed with the court a quo, which he said had erred in holding Chartaprops liable vicariously for the negligence of Advanced Planning.
[88] Nugent applied the principle of non-delegability, based on English law: There was a duty on Chartaprops, as owner of the mall, to ensure that its visitors were reasonably safe.
Ponnan also referred to classic test in Kruger, but he applied it differently: (a) (W)ould a reasonable man have foreseen the risk of danger in consequence of the work he employed the contractor to perform?
Ponnan also pointed out that there was no justification, in the fiction of the principle of non-delegability, for shifting the economic cost of the negligent acts of Advanced Planning, which was primarily responsible for the damage, to Chartaprops.
Delport suggests that the purpose of the Notice was to rectify the problem which arose as a result of the introduction of the expression "independent contractor" in section 26 of the Act.
A power of attorney is legally required in only a few cases, namely when required by some law or regulation, or established practice,[142] for example to appoint an attorney to prosecute an appeal in the High Court,[143] or a conveyancer to pass transfer of a mortgage bond,[144] or an agent to represent a principal in a contract for the alienation of land.
For example, if the power of attorney is to be used in a deeds registry, it must be attested either by two witnesses above the age of fourteen years and competent to give evidence in a court of law, or by a magistrate, justice of the peace, commissioner of oaths or notary public, but no person who derives any benefit under such power of attorney may attest it.
[149] An agent's authority to perform juristic acts on the principal's behalf may be conferred impliedly: that is, rather by conduct than by the spoken or written word.
[150] Whether such a tacit authority exists is a question of fact, dependent on the principal's intention, and is to be inferred from the agent's words and conduct, and from admissible evidence of surrounding circumstances.
The person's power to represent the other is, in these cases, derived not from manifestation of consent but from an appointment or office, or from a relationship between the parties.
Without the principal's knowledge and consent, the agent may not acquire any personal profit or benefit, other than any remuneration due in terms of the agency.
[178] Likewise, an agent instructed to sell property for a specified sum net is not entitled to retain any surplus if he succeeds in obtaining a higher price.
[180] In addition, the agent is under a continuing obligation to allow the principal to inspect books and relevant vouchers relating to authorised transactions.
An agent cannot claim commission for the mere introduction of a person willing and able to contract on the principal's terms, unless an agreement to that effect is proved.
In the case of a mandate "to find a purchaser," the agent's commission is usually payable on completion of a valid sale.
Casual agents, to whose services a tariff is not applicable, are entitled to an amount reasonable in the circumstances,[200] sometimes referred to as a quantum meruit.
[217] When, however, the undisclosed principal discovers that the contract that he in fact authorised has been concluded, he may adopt it, and may consequently sue the third party on it.
[231] This proposition holds good only when it can be shown, as a matter of construction, that the so-called agent in fact acted as a principal party to the contract.
[240] This rule, which runs contrary to accepted contractual principles, is derived from the common law, where mandate was essentially a gratuitous contract.
In modern law, the mandatary is usually remunerated for services rendered; in such cases, at least, it is doubtful whether the contract is freely terminable at either party's will.
[253] This proposition reflects Anglo-American rather than Roman-Dutch law, which consistently refused to recognise the validity of a procurator in rem suam mentioned by Voet.
"The better view," writes Graham Bradfield, "appears to be that an authority is always revocable, even if it is linked with a contract of mandate, which cannot be terminated unilaterally.