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'Compensation' and 'Indemnity' under the Agency Regulations: How the Common Law System Copes with the Invasion of Civilian Concepts

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Chapter Summary

This chapter considers the proper conceptualisation of the Directive's remedial scheme in order to understand how it maps onto the traditional common law taxonomy of remedies. It is necessary to summarise the circumstances in which termination of the commercial agency contract takes place and compensation or indemnity becomes payable. If we consider the quasi-proprietary nature of the commercial agency relationship, as reflected in French and German law, it becomes easier to rationalize the right to payment in terms of unjust enrichment. Principal and agent work together to build up an asset of value to both of them. On termination the whole of the value of that asset passes to the principal, to the exclusion of the agent. If the principal is permitted to keep the whole of the value of the agency business, he is unjustly enriched by virtue of appropriating the agent's share of that value.

Keywords: commercial agency relationship; common law taxonomy; French law; German law; remedial scheme



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