Commercial Law

Question (1)
Descriptive
what the doctrine of UP is
Siu Yin Kwan 5 Elements
Normative
Whether UP is unfair to TP?
argument and counter-arguing
sometimes TP does not want to bound with that person
can borrow from other law to make an argument
someone who is not within the contract, to sue and be sue, against the privity of law
UP does not sit comfortably with Privity, TP can be benefit and liable from the contract
Counter – normal agency principle is not that much nonalimony
Counter – TP knows the existence of TP and still contract with the A, in unidentified still TP made the choice to be bound
Counter – in undisclosed, TP does not know, cannot be said he or she is a risk taker
It is unfair to TP
OR
Against Unfairness
It is not so unfair to TP, maybe some unfairness, but there are restriction to minimize the unfairness. If there is express or implied terms, the terms which should be confined with the A and TP, then doctrine does not apply (Siu Yin Kwan) which they can protect by express terms
Counter-argue – whether in reality is it useful? Sometimes TP may not be able to insist on such terms, such as maybe TP is contracted with Lee Ka Shing, and added a terms that you are not the A, and Lee Ka Shing would not want, need to use his own standard terms. In situation with unequal bargaining power, the TP might not be protected
The TP might elect to sue A or P
Are these restrictions enough to protect the TP?
If it is Unfair to TP?
Sometimes UP doctrine works to the benefit of TP, the TP might find it more advantages to sue UP who has more asset compare to the A, such as Question 3 (secretive and reclusive millionaire)
Not all UP is Lee Ka Shing
The advantage is by chance only, unintended benefit by TP, not sth within TP’s control

Whether operation should be confined or not?
(1) since there are reasonable restriction to protect innocent TP, it strikes the balance and reach the point
A
socially and economically beneficial – there are other rationale of the doctrine, which commercial parties may prefer to deal with UP, which A might prefer to work for UP for the fear that P was disclosed, the TP might sidestep the agent and will directly work with the P in the future, losing the job and money
P
Some P does not want to appear on the surface of the transaction
Undisclosed on Siu Yin Kwan which it shouldn’t be confined, but the problem is with Watteu, there are issues, whether internal or external
Watteu should be overrule
Does not sit well with Representation & Unilateral Mistake as Identity
Therefore – relationship of the two statement – causative or not/ Agree or not with the Statement
Question (2)
Descriptive
Brief Facts and Ratio of First Energy (UK) Ltd v Hungarian International Bank Ltd [1993]
(1) Authority to communicate Approval from Senior
(2) Authority to Approval Transaction
Court said that the A has Apparent Authority to communicate approval from Senior

Normative (focus and beef)
Key Component (discuss all with legal reasoning)
whether modern commercial realities
whether it is hard to reconcile with orthodox legal principles
whether should be confined as far as possible
whether should be overturned completely
Relationship between two statements – Therefore – causative

Commercial Realities
(1) agree is reconcile and not in line with modern commercial realities & confine
(2) argue that it is unrealistic and commercially impracticable for a plaintiff to question A general apparent authority which enable him to approve
In line with Commercial Reality
(1) tries to protect innocent TP who can reasonably rely representation made by P – assume A has the apparent authority and that First Energy address the scope of apparent authority and ensure that apparent authority is large enough to protect this commercial convenience
(2) First Energy can be set to recognize the vulnerability internal restriction. TP may have no access of information to internal arrange between P and A. it recognize the vulnerability of the TP. On the other hand, counter argue that by saying, if we look at the facts of First Energy, to ask the P…

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