Ostensible Authority Research Articles

Authority by representation – a rule lacking a theory: A reappraisal of Makate v Vodacom (Pty) Ltd 2016 (4) 121 (CC)

In Makate v Vodacom (Pty) Ltd 2016 (4) 121 SA (CC) the Constitutional Court had to consider the difficult question whether an agreement to negotiate compensation at a later date for an employee who had invented something for his employer was enforceable, where in the absence of later agreement the issue would be referred to the Chief Executive Officer of the employer for final determination. Although the court answered this in the affirmative, the more pressing issue for present purposes was whether the representative of the employer who had negotiated the agreement with the employee had the necessary actual or apparent authority to conclude the agreement. In dealing with the matter of authority, the apex court took an unconventional approach to ‘ostensible’ or ‘apparent’ authority: Whereas the basis of such authority has traditionally been seen as the doctrine of estoppel, the court held that the expressions ‘apparent authority’ and ‘ostensible authority’ have no bearing on estoppel as such, but rather refer to a form of actual authority arising from a representation of authority by the principal in respect of the agent. This article examines the court’s approach in that regard and concludes that, although the decision attracts criticism from a conceptual viewpoint, there is merit in such an approach if it is adapted and defined purely in terms of the reliance theory.

No Magic to the Indoor Management Rule

In East Asia Company Ltd v PT Satria Tirtatama Energindo, the Judicial Committee of the Privy Council clarified the relationship between ostensible authority and the indoor management rule. It also confirmed that third parties seeking to rely on the appearance of authority must have acted reasonably, and not just rationally or honestly.

THE CORPORATE AGENT IN CRIMINAL LAW – AN ARGUMENT FOR COMPREHENSIVE IDENTIFICATION

AbstractWe use doctrines of identification to explain how corporations may commit criminal offences in their own right, but current versions thereof have several shortcomings. Here, I suggest that reformulating the identification doctrine to treat all corporate officers and employees as embodying the corporation when acting within their real or ostensible authority, might remedy these shortcomings. Arguments against the resulting expansion of corporate criminal liability are unconvincing, especially when juxtaposed with the criminal law's response to similar arguments made on behalf of natural persons. This may indicate that we should also moderate the criminal law's harshness towards natural persons.

Neilson v. Harford: Shape and Form in Patent Law

Neilson v. Harford has cast a long shadow over patent law. For American courts in the nineteenth century, the 1841 case from the Court of Exchequer was an authority whose “correctness has never been doubted and denied.” More recently, Neilson served as the ostensible authority for some of the Supreme Court’s most significant changes to the doctrine of patent eligibility under § 101. Parker v. Flook took from Neilson the notion that fundamental principles cannot contribute to the patent-eligibility of a claim, and Mayo v. Prometheus relied on Neilson to support its requirement for unconventional application of new discoveries. Drawing on a complete account of the Neilson trial that has never been examined by legal scholars, this chapter shows that the true story of Neilson v. Harford is very different than the one told by the Supreme Court. The Court of Exchequer never treated fundamental principles as part of the prior art, nor did it require inventive application of new discoveries; Neilson’s patent was sustained largely because discovery required only well-known, routine, and conventional means for application. The central question in Neilson was to what extent Neilson’s invention – and by extension patents in general – were bound by shape and form. The Exchequer’s conclusion that Neilson’s patent transcended form was key to three of the Supreme Court’s foundational nineteenth century cases: Winans v. Denmead’s extension of infringement beyond the patentee’s embodiment; Tilghman v. Proctor’s separation of a process from its instrumentalities; and O’Reilly v. Morse’s delineation of the outer bounds of enablement. In particular, the Morse Court’s contrast between Neilson’s invention and Morse’s illustrates that Morse was based on conventional enablement reasoning, not on the unpatentability of scientific discoveries.

The Uncopyrightability of Edicts of Government

This amicus brief filed in the Supreme Court appeal of Georgia, et al., v. Public.Resource.Org., explores the interplay of copyright law and the edicts of government doctrine. The “edicts of government” doctrine was first validated by the U.S. Supreme Court in a series of nineteenth century cases. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888); Callaghan v. Meyers, 128 U.S. 617 (1888). While the doctrine has never been directly recognized in the express wording of the copyright statute, it is nevertheless firmly rooted in foundational copyright principles that are themselves reflected in the text of the statute. Three foundational copyright principles buttress the doctrine. First, copyrightable authorship does not extend to official announcements of law, the hallmark of edicts of government. Authorship as requires personalization, an attribute that is antithetical to official pronouncements of law, which are generated in an impersonal and ex officio manner. Second, all edicts of government, as legal texts, are methods of operation, rendering them uncopyrightable. Third, authentic statements of law entail the merger of idea and expression insofar as the expression underlying edicts of government are capable of being expressed in only a limited number of ways in order to preserve its authenticity. Consequently, the Official Code of Georgia (O.C.G.A.) is not copyrightable. Petitioners concede that the statutory content of the O.C.G.A. is uncopyrightable. The annotations incorporated into the O.C.G.A. by the state legislature bear the imprimatur of the state and are therefore produced under the ostensible authority of the state, which renders them an edict of government. Contrary to Petitioners’ argument, an edict does not need to have the force of law to qualify as an uncopyrightable edict of government. The Supreme Court’s precedents contradict this position. Instead, faithful reading of these precedents suggest that something becomes an uncopyrightable edict of government when it is produced under the ostensible authority of the state and thus receives a presumptively official status, owing to its endorsement by the state. The process by which the annotations contained in the O.C.G.A. are adopted and merged with the statutory content therein constitutes the exercise of such ostensible authority, rendering the O.C.G.A. an uncopyrightable edict of government.

REPRESENTATION OF A COMPANY WHEN CONTRACTING WITH ANOTHER PERSON UNDER SOUTH AFRICAN COMPANY LAW Makate v Vodacom (Pty) Ltd [2016] ZACC 13

A company is an artificial person and has no mind, will or hands of its own. It is, therefore, compelled to act through human agents. The board of directors is responsible for the management and direction of the business affairs of the company. Under South African company law the directors’ powers of management are statutorily entrenched (S 66(1) of the Companies Act 71 of 2008). The board of directors may, however, delegate its powers to an individual director (or individual directors), a committee of the board, a managing director or other officers of the company. Before an individual director or officer of the company can conclude a binding transaction on behalf of their company, they must have the authority to do so. In South Africa, the issue of authority to enter into a transaction or agreement on behalf of a company is dealt with using the principles of the law of agency.The crisp issue in this note relates to the circumstances in which an individual company director or officer who, when contracting with another person, purports to be acting on behalf of the company will bind the company. In the recent case of Makate v Vodacom (Pty) Ltd ([2016] ZACC 13 (hereinafter “Makate v Vodacom”)), which involved a claim for reasonable compensation by the inventor of the concept of “Please Call Me” against Vodacom (Pty) Limited (hereinafter “Vodacom”), the Constitutional Court dealt specifically with the authority of a director to conclude a contract with a third party on behalf of the company. This note discusses Makate v Vodacom and the approach of the court regarding when a company will be bound by contracts concluded by its director or another person purporting to represent the company in a transaction with a third party. It examines the main judgment of Jafta J and the concurring judgment of Wallis J in relation to the legal nature of ostensible authority in the absence of actual authority.The note further looks at the issue of prescription, which Vodacom in its defence raised against the claim for compensation brought by Mr Makate. It explores the circumstances in which prescription can be successfully invoked to deflect a contractual claim brought against a company, the impact of the Constitution in this area of the law and whether the claim lodged by Mr Makate amounted to a “debt” for purposes of the Prescription Act (68 of 1969). To this end, again, both the main judgment of Jafta J and the concurring judgment of Wallis J are examined. This is followed by critical insights on the implications of this case and some concluding remarks.

Spatial Politics/Poetics, Late Modernism, and Elizabeth Bowen'sThe Last September

This article explores how Elizabeth Bowen's novel The Last September relies on a spatial aesthetic to convey interpersonal and political tensions, corresponding with the novelistic trend toward greater historical and political engagement that recent scholars have deemed “late modernism.” Bowen's spatial aesthetic in turn insists on a related spatial interpretative practice, which is consistent with theoretical developments in the 1930s, 1940s, and 1950s that consider how space and time cooperate in the configuration of narrative. Her poetics destabilizes time and linear plot as the primary constituents of narrative and undermines the ostensible authority of the “narrator” in service of representing focalizers' internal experiences. Her experiments with spatiality and focalization are less overtly radical than those of high modernist or avant-garde fiction writers. Instead, her subtly indeterminate narrative discourse uses space and time cooperatively and incorporates variable focalization to propel narrative in service of an engagement with the historico-political context. The subtlety with which the poetics expresses its politics conveys the experience of the historical moment even to a reader to whom the political outcome is known. Thus Bowen's changes to narrative discourse produce a tension between the focalized present and the project of looking back at history, conveying an ambivalent mixture of lamentation, critique, and tentative responsibility that characterizes the ongoing experience for many Anglo-Irish of her generation. Bowen's early regional novel is of its own moment, historical, political, and also aesthetic, at the forefront of the broader trend in midcentury aesthetics that we now call late modernism.

Hely Hutchinson v. Brayhead Ltd. - The Authority on Actual and Ostensible Authority

The case of Hely Hutchinson v. Brayhead Ltd. till date is taken as authority with regards to actual and ostensible authority in an organisation and liability in terms of employees. In an organisation, is the director an agent? Does he have absolute or actual authority to single-handedly carry out actions with or without consultation from the board of directors or any other such authority? What is the doctrine of estoppel and how is it related to Actual and Ostensible Authority? Are Actual and Ostensible Authority mutually exclusive? What role does the Contract Act play in such situations? These are only a few of the many questions raised in the case. Lord Denning, Lord Pearson and the other Justices have all answered these vital questions in this case, the help of a previous landmark cases like Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd. was taken. This paper consists of enumerable citations of relevant cases which were used in the judgment by the Justices and also are a medium of analyzing viewpoints post Judgment. This case till date is taken as the authority in defining actual authority or ostensible authority in an organisation and it is the sheer quality of the judgment by all the Justices in this case that allows it to remain so especially considering today's context of Company's and their risky elements including the employees. Through this paper, the attempt to answer all these questions has been made and to clearly define what authority in relation to any liability or decision actually is once and for all.

The Term of Office of the UN Secretary-General

Of the office of the Secretary-General (SG) a great deal has been written, but nothing sums up the position quite as well as the remark made by the first SG, Trygve Lie, to his successor, Dag Hammarskjold, on meeting him at New York’s Idlewild Airport on 9 April 1953, that Hammarskjold was about to inherit ‘the most impossible job in the world’. Called on to be politician, diplomat and administrator, the SG who speaks with the ostensible authority of the United Nations on matters great and small whilst at the same time working behind the scenes for the advancement of international peace and security. His – there has never been a female SG – is a continuous balancing act, serving the interests of multiple constituencies which did not elect him. Professor James Crawford reflects on the roles and challenges of the UN Secretary-General.

Selective defensiveness or nondefensiveness: How does relative autonomy relate to excuse-making when goal pursuits do not succeed?

Relative autonomy (RA) is high when goals are value-consistent and volitionally enacted. This research compared 2 views of RA’s influence on excuse-making after hypothetical or recalled failures to attain exercise goals: i.e., RA could reduce all forms of excuse-making (nondefensiveness), or only those that harm continued goal-pursuit (selective defensiveness). Drawing on the typology of excuses by Schlenker et al. (Psychol Rev 101:632–652, 1994), Studies 1–3 showed that individuals with higher RA toward exercise perceived less legitimacy in, and especially avoided using excuses that denied the goal’s self-relevance. This excuse-type, when compared with denying control, was most harmful to commitment, and was less effective at reducing culpability. Study 4 showed that internalization of the exercise goal was supported only when excuse-making was tolerated by an ostensible authority. Together, these findings support the selective defensiveness view.

Ostensible Authority in Public Law

Ostensible Authority in Public Law

Ostensible Authority in Public Law

Ostensible Authority in Public Law

Directing Freshman Composition: The Limits of Authority

The Wyoming Conference Resolution, reported on in the March 1987 issue of College English, expresses the collective frustration of composition faculty over the powerlessness they experience daily in their departments. Undoubtedly, many of us in composition do feel voiceless. Yet, despite our frustration over our individual plights, there nonetheless seems to be a general feeling in the field that composition has gained some influence in recent years, principally through the writing program and the writing program administrator. But has it? A close examination of the role of the writing program administrator suggests that even this tacit optimism may be unfounded-that, in fact, the Wyoming Resolution speaks just as much for writing directors as for composition instructors. Despite their ostensible authority within the English department, many freshman English directors possess little administrative power. We are beginning to understand more about the role of the composition director because in the last few years the field of writing program administration has been experiencing a period of intense self-reflexivity. This ongoing scrutiny of writing programs and their directors recently took on special significance when, to the surprise of many of us in composition, the Modern Language Association published two book-length studies on the subject: Carol P. Hartzog's Composition and the Academy: A Study of Writing Program Administration and Paul Connolly and Teresa Vilardi's New Methods in College Writing Programs: Theories in Practice. Yet these two studies remain largely descriptive and do not delve into underlying departmental power structures to determine the actual authority directors have. Linda G. Polin and Edward M. White's excellent study, reported on in 1985 in WPA: Writing Program Administration, comes closer to exploring writing program directors' authority. Polin and White interviewed 57 people on

Actual and Ostensible Authority of an Agent: A Straightforward Question and Answer

Actual and Ostensible Authority of an Agent: A Straightforward Question and Answer

Critias and Atheism

One of the best-known fragments of a lost Greek drama is Critias' fr. 43F19 Snell, an extended rhesis from the play Sisyphus in which the protagonist narrates how once upon a time human life was squalid, brutal, and anarchistic; as a remedy men devised Law and Justice; this expedient served to check open wrongdoing but did not hinder secret crimes; then some very clever man hit upon the idea of inventing gods and the notion of divine retribution; thus secret criminality was stopped by fear of the gods.The prevalent understanding of Critias' motives is largely determined by the commonest interpretation of this fragment. Some authorities think the notion of divine justice as merely a human device designed to serve a socially utilitarian purpose is Critias' own invention; others regard this passage as wholly or in part a réchauffé of the ideas of others, such as Protagoras, Democritus, or Diagoras of Rhodes. With few exceptions, it has until recently been thought that Critias was, if not a sophist himself, at least a cynical disciple of Machtpolitik who differed from similar thinkers such as Thrasymachus and Callicles only in that he translated ideas similar to those these figures are made to express in the pages of Plato into brutal political action.A handful of authorities have dissented from this view on the grounds that it is dangerous to attribute to a playwright sentiments placed in the mouths of his stage-characters (although to be sure, as we shall see, the theory that the views expressed in the fragment were the poet's own has ostensible ancient authority in the doxographic tradition). Recently the prevalent interpretation of fr. 19 Sn. has been subjected to additional criticism in two articles by German writers that may well be harbingers of a major reappraisal – long overdue, in the present writer's opinion – of Critias' beliefs.

The ostensible authority of the company secretary

(1971). The ostensible authority of the company secretary. The Law Teacher: Vol. 5, No. 3, pp. 173-175.

The Effect of Legal Counsel on Admissions to a State Mental Hospital: A Confrontation of Professions

positive associations between the presence of a lawyer and (a) duration of the hearing, and (b) the likelihood of not hospitalizing the defendant. The influence of the lawyer persisted within three categories of severity of mental disturbance, as evaluated by the non-psychiatrist observers. The interpretation of such findings by a psychiatrist participating in the hearings suggests that psychiatrists unwittingly negotiate an uneasy peace with lawyers by trading off effective authority to them, in exchange for the privilege of ostensible authority in the carefully staged setting of the admission hearings. THE field of forensic psychiatry may be conceptually divided into two areas of interaction centering in two social settings, the courtroom and the mental hospital, where the professions of law and psychiatry are found in confrontation. In the courtroom, what is viewed as a basically legal problem (guilt or innocence) has superimposed upon it a psychiatric qualification (insanity, incompetency, etc.). In the men