The doctrine of the undisclosed principal in South African law
| dc.contributor.advisor | Mould, K. L. | en_ZA |
| dc.contributor.author | Senokoane, Reamohetswe Portia | en_ZA |
| dc.date.accessioned | 2019-02-08T06:10:08Z | |
| dc.date.available | 2019-02-08T06:10:08Z | |
| dc.date.issued | 2018 | en_ZA |
| dc.description | Dissertation (LL.M.(Private Law)--University of the Free State, 2018 | en_ZA |
| dc.description.abstract | The doctrine of the undisclosed principal has been described as odd, anomalous, unsound and inconsistent with established legal principals, not only in South Africa, but also in England.¹ Regardless of the constant conflict associated with the implementation of this English law doctrine, South African courts have confirmed its existence, particularly in light of its commercial convenience.² The purpose of this dissertation is to consider the relevance of the doctrine of the undisclosed principal, in the South African context, with specific reference to the doctrine’s constitutional perpetuality. By ‘undisclosed principal’ is meant a principal whose existence is not known to the third party and not a principal who, known to be existent by the third party, are nevertheless not identified by name.³ By ‘agent’ is meant a person who in his own name contracts ostensibly for his own account, but behind whom there stands an undisclosed principal.⁴ The doctrine of the undisclosed principal may be illustrated by the following scenario: An agent acting on behalf of a potential party to a contract (for the sake of this explanation referred to as “A”), enters into an agreement with another (“B”). At the time of entering into the contract, A’s identity is unknown to B. Rather than entering into the agreement on A’s behalf, A’s agent concludes the agreement with B in his (agent’s) own name. By operation of the doctrine of the undisclosed principal, A is allowed to take action against B in the case of non-fulfilment of the latter’s obligations agreed upon in the contract concluded between A’s agent and B. Similarly, B can also institute action against A once he or she comes to know of the existence of the latter, which will only occur in the instance when A decides to hold B liable based on the non-performance initially concluded between A’s agent and B. Delport submits that the undisclosed principal is in a position similar to a cessionary wherein the “agent” is seen as the cedent when he or she comes to the fore and seeks to enforce the contractual rights against the third party. A fictional cession is presumed, since the principal’s right to intervene is not based on any actual cession. When the principal steps forward to enforce the contract and the third party decides to sue the principal, the intermediary (“agent” or cedent) is released from all the rights and duties flowing from the contract and a cession of rights and an assignment of obligations are deemed to have taken place. Another theory states the agent in fact acts in the capacity of a trustee in such an instance. He uses the example of the sale of land as the subject of the conclusion of the contract between the agent and the third party. The example holds: When A conveys the land to B, no one will say that the title passes to C. But B, who gets the title, does not hold it for himself, but as trustee for C. To say that A may charge C upon B's contract of purchase, is to maintain what no one would maintain, that a cestui que trust may be sued, and at law, upon contracts between the trustee and third persons. | en_ZA |
| dc.identifier.uri | http://hdl.handle.net/11660/9711 | |
| dc.language.iso | en | en_ZA |
| dc.publisher | University of the Free State | en_ZA |
| dc.rights.holder | University of the Free State | en_ZA |
| dc.subject | Private law | en_ZA |
| dc.subject | South Africa | en_ZA |
| dc.subject | English law doctrine | en_ZA |
| dc.subject | Doctrine of undisclosed principle | en_ZA |
| dc.subject | Constitutional perpetuality | en_ZA |
| dc.title | The doctrine of the undisclosed principal in South African law | en_ZA |
| dc.type | Dissertation |