In order to compare agency in continental and Anglo-American law, the principal types of agency that have developed in practice should be noted.
The continental “commercial agent” and his functions
The four main types of agent engaged in business activities in continental Europe can be identified as follows:
Commission agent (German Kommissionär, French commissionaire, Italian commissionario)
The commission agent accepts or sells goods for the account of his principal, but in his own name. He is independent of his principal, has a claim for his commission, and, except in France, has the right when dealing with certain goods to conduct the transaction as he sees fit. The forwarding agent (German Spediteur, French commissionaire de transport, Italian spedizioniere) ships goods in his own name for the account of his principal and therefore is a type of commission agent.
Commercial agent (German Handelsvertreter; French agent commercial, or voyageur, or représentant et placier; Italian agente)
The commercial agent negotiates and concludes contracts on behalf of his principal. Although the degree of his independence from the principal varies, he is never totally independent. While Italian law limits such an agent’s activities to a specific geographic region, German law has such limitations only for the Agent, a subclassification of the general commercial agent who remains unrestricted in this regard. Apart from several protective rules, the French commercial agent is subject to the general rules governing the mandate.
Broker (German Mäkler, French courtier, Italian mediatore)
The broker is a business agent who is completely independent of his principal. In the area of employment brokerage or placement services, most European countries have passed special regulatory legislation to protect the interests of those persons using such services to seek employment.
Sales representative
The sales representative is a dependent employee of a merchant who concludes contracts for the merchant outside the business establishment. Most European legal systems have no special provisions governing such an agent but rather treat the position under the general rules governing dependent commercial employees (e.g., those governing German shop assistants, or Handlungsgehilfen).
The variety of Anglo-American agents
Various kinds of agency relationships are evident in Anglo-American commercial life. The factor and the broker are the most common mercantile agents dealing in transactions involving personal property. The factor is entrusted with possession of the chattels to be sold, or the documents of title thereto, and is empowered to conclude the sale at the best price obtainable. The broker, on the other hand, has no possession of the object of sale but is empowered to make contracts for the purchase or sale of personal property on behalf of his principal. More limited are the powers of the real estate agent, who may show the land and state the asking price to the potential buyer without ordinarily being empowered to make further representations. The store salesman is similarly restricted in his power to represent his principal and can usually do no more than make customary warranties and sell at the price fixed by his employer. In contrast, the traveling salesman not in possession of the goods normally has authority only to take orders, which are in effect mere offers to buy and are not binding on either party until the principal has accepted. The auctioneer is usually empowered to do no more than sell at the highest price bid.
The common function of a second large class of agents is managerial or administrative. The manager of a business has the widest authority of all business agents and normally has complete control of all normal operations of the business. The agent employed to manage investments has a duty to deal only as would a prudent investor with reference to the principal’s personal financial situation. The powers of the agent entrusted with his principal’s land or chattels is more administrative; he has full power to protect the property and to make it profitable, but he may not sell or encumber it. Finally, the attorney at law may do what is necessary to advance his client’s interests and may incur the necessary expenses in so doing but, unless specifically authorized, may not release any substantive rights of his client.