This website uses cookies to ensure you get the best experience on our website. Learn more

LPC Law Notes Commercial and IP Notes

Commercial Intermediaries Notes

Updated Commercial Intermediaries Notes

Commercial and IP Notes

Commercial and IP

Approximately 100 pages

A collection of the best LPC Commercial and IP notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through twenty-nine LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

In short these are what we believe to be the strongest set of CLIP notes available in the UK this year. This collection of notes is fully updated fo...

The following is a more accessible plain text extract of the PDF sample above, taken from our Commercial and IP Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Commercial Intermediaries

Methods of getting products on the market:

  1. selling directly to customers

  2. Appointing an agent

  3. Appointing a distributor

  4. Licensing technology

Agency

Types

  • marketing - market Principal’s (‘P’) products and finds/introduces customers to market - Regs less likely to apply to marketing As

  • Sales - classic commercial A relationship. A sales A enters into the contract w/the customer by signing it for and on behalf of and in name of P

Key terms of A ag

Include the following

Appointment

3 x types

  1. exclusive - means P agrees not to appoint anyone else in A’s territory or do it themselves

  2. Sole- same as exclusive but P can still sell

  3. Non-exclusive - P can appoint any numbers of As in territory and sell themselves

Remuneration

Paid via a number of mechanisms:

  • % of invoice of products sold; or

  • Fixed minimum consideration; or

  • Sliding/increasing scale of commission (more A sells, the higher the commission rate)

Rights and duties of A

  1. CL - implied duties

  • fiduciary duty to act in good faith

  • Exercise r’able care and skill

  • Account to P for all property received

  • Right of A to r’able remuneration

  • Right of A to be indemnified against liabilities incurred in performing his duties

  1. CL - contract law A ag

  • what is expressly agreed

  • Commercial Agents (Council Directive) Regulations 1993 (Regulations) will either imply or override certain cl’s

(c) Regulations [see box below]

Regulations

Who is commercial A to which Regs apply?

(1) w/in definition of A - defined Ref 2(1) as ‘self-employed intermediary who has continuing authority to negotiate the sale or purchase of goods on behalf of [P] or or negotiate and conclude the sale or purchase of goods on behalf or and in P’s name’

  • Therefore on the whole usually sale As although market As could still fall w/in definition

  1. reg 1(3) if both parties agree contract is to be governed by another MS’s law, a UK court must apply that MS’s equivalent reg - even if A was acting in UK

  2. If both parties agree contract is to be governed by English/Scottish law (even though A is operating in another MS) and equivalent MS reg allow parties to choose English/Scottish law, court must apply Regs

Reg 3 -

A’s duties

  • Look after P’s interests

  • Act dutifully and in good faith

  • Communicate all necessary info to P

  • Comply w/P r’able instructions

Reg 4 -

P’s duties

  • act dutifully and in good faith

  • Provide all necessary docs in goods for A

  • Provide all necessary info for A

  • Let A know if trans’s procured by A are accepted or refused

Reg 6 -

Remuneration

  • Usually dealt w/expressly but if no applicable custom, remuneration must be r’able

Nb. Regs 7, 8 and 9 are not mandatory and can be contracted out of expressly

Reg 7 -

Commission during contract

A entitled to commission during contract when:

  1. trans has been concluded as a result of his action Reg 7(1)(a); or

  2. The contract is signed a customer who has previously been introduced by the A Reg 7(1)(b); or

  3. The contract is signed w/a customer who is w/in the A’s exclusively agreed territory or customer group Reg 7(2)

Reg 8 -

Commission after contract

A entitled to commission after contract when, Reg 8(a) and (b):

  1. trans entered into (contract w/customer) was ‘mainly attributable’ to A’s effort and it was entered into w/in a r’able time after the agency ended; or

  2. In acc w/conds in Reg 7, the trans results from an order being place w/P before A ended

Nb common for P to exclude Reg 8

Reg 9 - apportioning commission between outgoing and new As

Apportionment of commission earned under reg 8 if ‘equitable’.

Regs 10(2) and (3), 14-15 and 17-19 are mandatory

Reg 10(2) and (3) -

When is commission due and payable?

Reg 10(2) - comm is due when P becomes liable for sum

Reg 10(3) - comm is payable not later than the last day of the month following the quarter in which it became due

Regs 14-15 -

Minimum notice periods

Apply where A contract has indefinite term. Minimum notice periods apply as follows:

  1. during first yr of A - 1 month

  2. During 2nd yr of A - 2 months

  3. During 3rd yr and subsequently - 3 months

Regs 17-19 -

Indemnity OR compensation payable on termination

  1. Compensation = amount of payment is calculated by valuing business A has built up during term of ag. Reg 17(6) P must compensate A for ‘damage’ he suffers as a result of termination

  • Lonsdale v Howard and Hallam HL found:

  • Compensation can be awarded for any damage suffered by A (not limited to what is fair and r’able)

  • Losses will include value of A business @ time of termination, in particular value of goodwill built up by A which would otherwise pass to P free of charge

  • In valuing goodwill, correct approach is to consider the price a buyer of A’s business would ahve paid for goodwill

  1. Indemnity - regs 17(2)-(5) = amount of payment takes account of:

  • the extent to which A has brought new customers/significantly increased business; AND

  • The P continues to derive ‘...

Buy the full version of these notes or essay plans and more in our Commercial and IP Notes.