The rights and duties of the agent 175in the tort of conversion. If Asif surrenders possession of the ring then he will lose his right
to the lien. Similarly, Asif would lose the right to the lien if he waived the right. This would
be done by telling Phil, either expressly or impliedly, that he did not want the right to a lien.Extra rights and duties of self-employed commercial agents
The Commercial Agents (Council Directive) Regulations 1993 are of significance mainly in
relation to compensation payable when a self-employed commercial agent ceases to act for
a principal. However, the Regulations also set out rights and duties of self-employed com-
mercial agents. The definition of a self-employed commercial agent is fairly narrow, and so
relatively few agents are covered by the Regulations.
Definition of a self-employed commercial agent
Regulation 2(1) defines a commercial agent as:
a self-employed intermediary who has continuing authority to negotiate the sale or purchase
of goods on behalf of another person (the ‘principal’), or to negotiate and conclude the sale or
purchase of goods on behalf of and in the name of that principal.The following points should be noted:
(i) A commercial agent must have continuing authority to negotiate the buying or selling
of goods on behalf of the principal. An agent who does not negotiate, or who merely
negotiates the buying or selling of services, is not included. If the price is fixed by the
principal then this might indicate that the agent did not negotiate.
(ii) The contract must be concluded in the name of the principal.
(iii) A commercial agent must be self-employed, rather than an employee.
(iv) A commercial agent must act in return for payment.
(v) Limited companies have been held to be commercial agents and there seems no reason
why partnerships should not be. Company officers acting on behalf of their companies
are excluded. So are insolvency practitioners and individual partners acting on behalf
of their firms.
(vi) The Regulations do not apply to a person whose activities as commercial agent are to
be considered ‘secondary’ to the principal’s business. Activities are to be considered
secondary if: (a) the principal is not in business to sell or buy goods of a certain kind;
(b) contracts to buy and sell are not normally negotiated or concluded on a commercial
basis; or (c) making one deal is not likely to lead to more deals. The overall idea is that
if the agent spends effort, skill and resources in developing a market for the principal’s
goods, then such activities are in the commercial interests of the principal and the agent
should acquire rights.
The Regulations also provide that if customers choose goods themselves, and merely use an
agent to place their orders, this would suggest that the agent is not a commercial agent. On
the other hand, if the goods are available only through the agent this would suggest that he
is a commercial agent. There are four other circumstances in which commercial agency is
indicated: first, where the principal was the manufacturer, importer or distributor of the
goods; second, where the goods are specifically identified with the principal; third, where
the agent devotes substantially the whole of his time to his agency activities; fourth, where
the arrangement is described as commercial agency.