Yes, but vicarious liability for torts and other wrongs has not generally
(pace, physical molestation) been applied to principals who are not either
the employer or a partner of the tortfeasor. Merely having an agency
relationship with the tortfeasor is not enough. If the principal IS an
employer it will not usually matter whether the employer is undisclosed.
But at least on one view, employer liability for some torts (e.g. deceit,
negligent misstatement) does turn on apparent authority in the
employee,and hence undisclosed principals would not be liable without
express authorisation. Equally, where there was apparent authority to make
the relevant statement, an agency relationship is sufficient to make the
principal liable. I discussed these controversial issues in (2012) 128 LQR
260. Peter.

On 3/02/15 4:14 am, "Gerard Sadlier" <gerard.sadlier@gmail.com> wrote:

>Angela,
>
>Many thanks.
>
>I much prefer the Canadian decision, at least so far as contracts are
>concerned and I note that Watteau's case has been doubted in Bowstead
>and Reynolds (at 8.79) and has rarely if ever been followed in more
>than a hundred years, in any reported case that I can find!
>
>I wonder however, whether such private limitations between undisclosed
>principle and agent, are similarly effective, where what is at issue
>is the principle's vicarious liability?
>
>After all, reliance on the employer by the victim is not at the heart
>of the vicarious liability cases concerning employees and the law
>seems to be far closer to the enterprize liability rationale you speak
>of.
>
>Kind regards
>
>Ger
>
>On 2/2/15, Angela Swan <aswan@airdberlis.com> wrote:
>> In Watteau v. Fenwick, [1893] 1 Q.B. 346, the plaintiff made a contract
>>with
>> the manager of a pub for the supply of goods. The plaintiff was not
>>paid
>> and sued the defendant, the owner of the pub. The manager had been the
>> owner of the pub, but he had sold it to the defendant, remaining on as
>> manager. The licence was taken out in the manager's name and his name
>>alone
>> appeared as the licensee. The manager was instructed not to purchase
>> certain supplies for the pub from outside parties. In breach of these
>> instructions, the manager purchased supplies from the plaintiff. The
>> Divisional Court, on appeal from the County Court, held that what the
>> manager did was within the usual authority of a person managing a pub
>>and
>> that the acts of the manager within the scope of this authority bound
>>the
>> principal, even though the third party neither knew of the agency nor
>>relied
>> on anything done by the principal.
>>
>>
>>
>> The only justification that the court gave was that if the defendant
>>were
>> not made liable, then
>>
>>
>>
>> in every case of undisclosed principal, or at least in every case where
>>the
>> fact of there being a principal was undisclosed, the secret limitation
>>of
>> authority would prevail and defeat the action of the person dealing
>>with the
>> agent and then discovering that he was an agent and had a principal.
>>([1893]
>> 1 Q.B. 346 at 349)
>>
>>
>>
>> The court made reference to the law of limited partnerships, pointing
>>out
>> that actions taken by the general partner within the scope of his usual
>> authority would bind a limited partner. The court then claimed that
>>the
>> law of partnership was but a branch of the general law.
>>
>>
>>
>> An alternative view was taken in McLaughlin v. Gentles (1920), 46 O.L.R.
>> 477, 51 D.L.R. 383 (App. Div.). The defendants were the members of a
>>mining
>> syndicate that had sent out one of their number, a man called Chisholm,
>>to
>> prospect. The plaintiff supplied goods to Chisholm and, when Chisholm
>> refused to pay, sued the other members of the syndicate to recover the
>>price
>> of the goods. The Appellate Division held that the defendants (other
>>than
>> Chisholm) were not liable as they had not held Chisholm out as their
>>agent
>> or as having authority to buy the goods. The court referred to Watteau
>>v.
>> Fenwick and other cases, but declined to follow the Divisional Court.
>>The
>> Appellate Division said:
>>
>>
>>
>> It seems to be straining the doctrine of ostensible agency or of holding
>> out, to apply it to a case where the fact of the agency and the holding
>>out
>> were unknown to the person dealing with the so-called agent at the
>>time, and
>> to permit that person, when he discovered that his purchaser was only an
>> agent, to recover against the principal, on the theory that he is
>>estopped
>> from denying that he authorized the purchase. It appears to me that the
>> fact that there was a limitation of authority is [at] least as
>>important as
>> the fact that the purchaser was an agent. The vendor did not know
>>either of
>> these facts, and so did not draw any conclusion involving the principal
>>when
>> he sold and delivered the goods. Should he be permitted, when he
>>elects to
>> look to the principal, to do so upon any other terms than in accordance
>>with
>> the actual authority given at that time? It is entirely different where
>> there is a holding out as agent and the fact of the agency is known, but
>> where neither is an element in the bargain nor the reason why the
>>credit was
>> given, and so not an additional security known to the vendor at the
>>time, no
>> equity should be raised in favour of the vendor as against the
>>principal so
>> as to make the latter liable.
>>
>> ((1920), 46 O.L.R. 477, 490, 51 D.L.R. 383, 394-95, per Hodgins J.A.)
>>
>>
>>
>> The comparison between Watteau v. Fenwick and McLaughlin v. Gentles
>>neatly
>> presents the issue. The first case establishes a kind of "enterprise"
>> liability, making the owner, the undisclosed principal, liable for any
>> contracts made with the plaintiff. The second sees no reason to spread
>>the
>> loss among the partners or to do anything other than to say that the
>> plaintiff must, in the future, make sure that anyone he deals with has
>> assets sufficient to complete the purchase.
>>
>>
>>
>> Angela Swan
>>
>>
>>
>>
>>
>> -----Original Message-----
>> From: Gerard Sadlier [mailto:gerard.sadlier@gmail.com]
>> Sent: February-02-15 9:31 AM
>> To: Harrington Matthew P.
>> Cc: obligations@uwo.ca
>> Subject: Re: Vicarious Liability of Undisclosed Principle?
>>
>>
>>
>> Mat
>>
>>
>>
>> Much appreciated!
>>
>>
>>
>> Thanks
>>
>>
>>
>> Ger
>>
>>
>>
>> On 2/2/15, Harrington Matthew P.
>>
>><matthew.p.harrington@umontreal.ca<mailto:matthew.p.harrington@umontreal.
>>ca>>
>> wrote:
>>
>>> Ger
>>
>>>
>>
>>> Here is a relatively recent Ontario AC case discussing the general
>>>rule.
>>
>>>
>>
>>> John Ziner Lumber Ltd. v. Kotov, 2000 CanLII 16894 (ON CA)
>>
>>>
>>>http://www.canlii.org/en/on/onca/doc/2000/2000canlii16894/2000canlii1689
>>>4.html
>>
>>>
>>
>>> An early American Supreme Court case is
>>
>>>
>>
>>> Ford v. Williams, 62 U.S. 287 (U.S. 1858)
>>
>>>
>>
>>> An old, but pretty good law journal article is
>>
>>>
>>
>>> Arnold Rochvarg, Ratification and Undisclosed Principals, 1989 McGill
>>> L.J.
>>
>>>
>>
>>> http://lawjournal.mcgill.ca/userfiles/other/4930762-Rochvarg.pdf
>>
>>>
>>
>>> ---------------------------------------
>>
>>> Matthew P. Harrington
>>
>>> Professeur titulaire
>>
>>>
>>
>>> Faculté de droit
>>
>>> Université de Montréal
>>
>>> 3101 chemin de la Tour
>>
>>> Montréal, Québec H3T 1J7
>>
>>> 514.343.6105
>>
>>> www.droit.umontreal.ca<http://www.droit.umontreal.ca>
>>
>>> ---------------------------------------
>>
>>>
>>
>>>
>>
>>> From: Gerard Sadlier<mailto:gerard.sadlier@gmail.com>
>>
>>> Sent: Monday, February 02, 2015 8:06 AM
>>
>>> To:
>>>
>>>obligations@uwo.ca<mailto:obligations@uwo.ca<mailto:obligations@uwo.ca%3
>>>cmailto:obligations@uwo.ca>>
>>
>>>
>>
>>> Dear all,
>>
>>>
>>
>>> I'd be really grateful for any authorities on the question whether a
>>
>>> principle is vicariously liable for acts of their agent in the course
>>
>>> of or incidental to the agent's agency, in circumstances where the
>>
>>> principle is undisclosed to third parties.
>>
>>>
>>
>>> Where, in other words, T (the third party) deals with A (the agent)
>>
>>> not realizing that A acts for P (the principle).
>>
>>>
>>
>>> Many thanks
>>
>>>
>>
>>> Ger
>>
>>>
>>
>>