and both parties obtain a written memorandum of the contract upon which they can sue.
The broker, on performing his duty in accordance with the terms upon which he is employed, is entitled to be paid his “brokerage.” This usually takes the form of a percentage, varying according to the nature and conditions of the business, upon the total price of the goods bought or sold through him. When he guarantees the solvency of the other party, he is said to be employed upon del credere terms, and is entitled to a higher rate of remuneration. In some trades it is the custom for the selling broker to receive payment from the buyer or his broker; and in such case it is his duty to account to his principal for the purchase money. A broker who properly expends money or incurs liability on his principal’s behalf in the course of his employment, is entitled to be reimbursed the money, and indemnified against the liability. Not having, like a factor, possession of the goods, a broker has no lien by which to enforce his rights against his principal. If he fails to perform his duty, he loses his right to remuneration, reimbursement and indemnity, and further becomes liable to an action for damages for breach of his contract of employment, at the suit of his principal.
Relations between Broker and Third Party.—A broker who signs a contract note as broker on behalf of a principal, whether named or not, is not personally liable on the contract to the third party. But if he makes the contract in such a way as to make himself a party to it, the third party may sue either the broker or his principal, subject to the limitation that the third party, by his election to treat one as the party to the contract, may preclude himself from suing the other. In this respect the ordinary rules of the law of agency apply to a broker. Generally, a broker has not authority to receive payment, but in trades in which it is customary for him to do so, if the buyer pays the seller’s broker, and is then sued by the seller for the price by reason of the broker having become insolvent or absconded, he may set up the payment to the broker as a defence to the action by the broker’s principal. Brokers may render themselves liable for damages in tort for the conversion of the goods at the suit of the true owner if they negotiate a sale of the goods for a selling principal who has no title to the goods.
The Influence of Exchanges.—The relations between brokers and their principals, and also between brokers and third parties as above defined, have been to some extent modified in practice by the institution since the middle of the 19th century in important commercial centres of “Exchanges,” where persons interested in a particular trade, whether as merchants or as brokers, meet for the transaction of business. By the contract of membership of the association in whose hands is vested the control of the exchange, every person on becoming a member agrees to be bound by the rules of the association, and to make his contracts on the market in accordance with them. A governing body or committee elected by the members enforces observance of the rules, and members who fail to meet their engagements on the market, or to conform to the rules, are liable to suspension or expulsion by the committee. All disputes between members on their contracts are submitted to an arbitration tribunal composed of members; and the arbitrators in deciding the questions submitted to them are guided by the rules. A printed book of rules is available for reference; and various printed forms of contract suited to the various requirements of the business are specified by the rules and supplied by the association for the use of members. In order to simplify the settlement of accounts between members, particularly in respect of “futures,” i.e. contracts for future delivery, a weekly or other periodical settlement is effected by means of a clearing-house; each member paying or receiving in respect of all his contracts which are still open, the balance of his weekly “differences,” i.e. the difference between the contract price and the market price fixed for the settlement, or between the last and the present settlement prices.
As all contracts on the market are made subject to the rules, it follows that so far as the rules alter the rights and liabilities attached by law, the ordinary law is modified. The most important modification in the position of brokers effected by membership of such an exchange is due to the rule that as, between themselves, all members are principals, on the market no agents are recognized; a broker employed by a non-member to buy for him on the market is treated by the rules as buying for himself, and is, therefore, personally liable on the contract. If it be a contract in futures, he is required to conform to the weekly settlement rules. If his principal fails to take delivery, the engagement is his and he is required to make good to the member who sold to him any difference between the contract and market price at the date of delivery. But whilst this practice alters directly the relations of the broker to the third party, it also affects or tends to affect indirectly the relations of the broker to his own principal. The terms of the contract of employment being a matter of negotiation and agreement between them, it is open to a broker, if he chooses, to stipulate for particular terms; and it is the usual practice of exchanges to supply printed contract forms for the use of members in their dealings with non-members who employ them as brokers, containing a stipulation that the contract is made subject to the rules of the exchange; and frequently also a clause that the contract is made with the broker as principal. In addition to these express terms, there is in the contract of employment the term, implied by law in all trade contracts, that the parties consent to be bound by such trade usages as are consistent with the express terms of the contract, and reasonable. On executing an order the broker sends to his client a contract-note either in the form of the old bought and sold notes “I have this day bought
sold for you,” or, when the principal clause is inserted, “I have this day sold to
bought from you.” These are not bought and sold notes proper, for the broker is not the agent of the third party for the purpose of signing them as statutory memoranda of the sale. But they purport to record the terms of the contract of employment, and the principal may treat himself as bound by their provisions. Sometimes they are accompanied by a detachable form, known as the “client’s return contract note,” to be filled in, signed and returned by the client; but even the “client’s return contract note” is retained by the client’s own broker, and is only a memorandum of the terms of employment. The following is a form of contract note rendered by a broker to his client for American cotton, bought on the Liverpool Cotton Exchange for future delivery. The client’s contract note is attached to it, and is in precisely corresponding form.
American Cotton,
Delivery Contract Note.
Liverpool,. . . . . . . . . . . . . . M. . . . . . . . . . . . . . . . . . . . . .
We have this day . . . . . . . . . . . . . . to The contract, of which this is a note, is made between ourselves and yourselves, and not by or with any person, whether disclosed or not, on whose instructions or for whose benefit the same may have been entered into. Yours faithfully,
. . . . . . . . . . . . . . . . . . . . .
The contract, of which the above is a note, was made on the date specified, within the business hours fixed by the Liverpool Cotton Association, Limited. Please confirm by signing and returning the contract attached. |
The above form of contract note illustrates the tendency of exchanges to alter the relations between the broker and his principal. The object of inserting in the printed form the provision that the contract is made subject to the rules of the
