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Comparative law notes


The vicarious agent serves the same function as an agent under common law serves; namely, representing a principal in his dealings with third parties. As in common law, the principal will be bound by, and held responsible for, the actions or inactions of his agent if the agent has acted within his or her scope of authority. Under common law, the scope of authority is established between the principal and agent pursuant to contract, law or custom (express authority, implied authority), but a principal may also be held responsible for persons purportedly acting on his behalf if the principal created the appearance that such person has the authority to act of his behalf (apparent authority). By contrast, under German law, a principal's liability to his obligee based on his vicarious agent's actions or inactions will depend simply on whether the vicarious agent was acting within the principal's scope of duties owed to the principal's obligee. *** Thus, while the actions or inactions of an agent under common law and a German vicarious agent both serve to bind the principal vis-à-vis the principal's counter-party (obilgee), the criteria for determining whether the agent acted within his scope of authority, thereby binding his principal, are somewhat different. Given the fact that German law also has other concepts that share many of the same features as Erfüllungsgehilfen (e.g., Verrichtungsgehilfen, Bevollmächitgen) and given the need for these concepts to be distinguished, TransLegal recommends using the commonly used neologism, "vicarious agent" (see below).

Definitions of agent


a person who is authorised to act for or represent another; a person authorised by another to act on his behalf

She asked her agent to arrange for the sale of her car.