Agency vs Trust
AGENCY TRUST
Agent represents and acts for his
principal
Title and control of the property
under trust instrument passes to the
trustee who acts in his own name
Agency may in general be revoked at
any time
Trust may be terminated only by
fulfillment of its purpose
Article 1869. Agency may be express, or implied from the acts of the
principal, from his silence or lack of action, or his failure to repudiate the
agency, knowing that another person is acting on behalf without authority.
Agency may be oral, unless the law requires a specific form.
Kinds of Agency
1. As to manner of its creation:
a. Express – orally or in writing (authority)
b. Implied – (enumeration is NOT exclusive)
i. one which is implied from the acts of the principal
ii. from his silence or lack of action, or
iii. his failure to repudiate the agency knowing that
another person is acting on his behalf without
authority or
iv. from the acts of the agent which carry out the agency
v. from his silence or inaction according to the
circumstances
2. As to its character:
a. Gratuitous
b. Compensated or onerous
3. As to extent of business covered:
a. General – one which comprises all the business of the principal
b. Special – one which comprises one or more specific
transactions
4. As to authority conferred:
a. Couched in general terms – one which is created in general
terms and is deemed to comprise only acts of administration
b. Couched in specific terms – one authorizing only the
performance of a specific act/s.
5. As to its nature and effects:
a. Ostensible or representative – agent acts in the name and
representation of the principal
b. Simple or commission – agent acts in his own name but for the
account of the principal
Form of Agency
General rule: It is created by contract which may be oral, written or implied.
Exceptions:
a. When form is required for the validity of the contract
b. When it is required to make the contract effective against third person
c. When it is required for the purpose of proving the existence of a
contract such as those provided in the Statute of Frauds
Appointment of Agent
It is not essential that an agent should be appointed directly by the principal, but
the appointment may be made through another, as by referring an applicant to
another and representing that he has authority to act, or the relation may arise out
of an agreement to employ the agent of another, such person then becoming the
agent of the first party.
Presumption of Agency
General rule: Agency is not presumed. The relation between principal and agent
must exist as a fact. Burden of proof rests upon the person alleging the agency to
show, not only the fact of its existence, but also its nature and extent.
Exception: Presumption may arise in those cases where an agency may arise by
operation of law or to prevent unjust enrichment.
Authority of attorney to appear on behalf of his client
1. Authority in an action presumed – Rule 138, ROC Section 21, Section
22, Section 23. (Authority to represent is presumed)
2. Scope of authority – an act performed by counsel within the scope of a
“general or implied authority” is regarded as an act of the client.