Legal Analysis of the Rule of Representation’s Transferability in Commercial Agency (with a Glance to Common Law)

Document Type : Academicm and Research

Author

Associate Professor, Department of Law, Faculty of Administrative Sciences and Economics, University of Isfahan.

Abstract

The Partnership Securities’ Issuance Manner Act of 1997 mentions to an agent bank that a guarantee by the partnership securities’ publisher is entrusted to it, so that if necessary, it can on its own initiative pay out of that guarantee the principal, interest on account and realized interest of the partnership securities to their holders. Contrary to the original idea, that bank is thus not the guarantor but the representative, i.e., the representative in paying the above amounts from the ‘fund of guarante’. This agency is also seen in the name that the legislature has assigned to it, namely the ‘agent’ bank. But whose agent is this? Partnership securities’ publisher or holder? Given their designation by the publisher, they first appears to be the publisher’s agen, but more precision shows the opposite; because they take over mortgage (assurance) deposited by the publisher, whereas we know the mortgage must be taken by the mortgagee and principally kept at his disposal, so they are partnership securities’ holders agent. Therefore, the issue arises that considering the partnership securities’ transferability, how can principals change but agents’ representation remain the same? Here it seems that legislature in this case likely, under influence of the other countries’ law, considers agency to be transferable in all cases of agency, brokerage, undisclosed commission, tenure to transportation, commercial representation, and in general, in all forms of commercial agency. Not the binding nature of agency but only its transferability is meant. In this regard, what attracts attention is transferability of agency’s representation (not revocation of agency) with death, incapacitation or change of the principal, but on a case-by-case basis, it can also think about death, the incapacitation and changing the agent.

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Comparative Studies on Islamic and Western Law
Volume 11, Issue 3 - Serial Number 41
September 2024
Pages 117-138

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