1911 Encyclopædia Britannica/Broker
BROKER (according to the New English Dictionary, from Lat. brocca, spit, spike, broccare, to "broach"—another Eng. form of the same word; hence O. Fr. vendre à broche, to retail, e.g. wine, from the tap, and thus the general sense of dealing; see also for a discussion of the etymology and early history of the use of the word, J.R. Dos Passos, Law of Stockbrokers, chap. i., New York, 1905). In the primary sense of the word, a broker is a mercantile agent, of the class known as general agents, whose office is to bring together intending buyers and sellers and make a contract between them, for a remuneration called brokerage or commission; e.g. cotton brokers, wool brokers or produce brokers. Originally the only contracts negotiated by brokers were for the sale or purchase of commodities; but the word in its present use includes other classes of mercantile agents, such as stockbrokers, insurance-brokers, ship-brokers or bill-brokers. Pawnbrokers are not brokers in any proper sense of the word; they deal as principals and do not act as agents. In discussing the chief questions of modern legal interest in connexion with brokers, we shall deal with them, firstly, in the original sense of agents for the purchase and sale of goods.
Relations between Broker and Principal.—A broker has not, like a factor, possession of his principal's goods, and, unless expressly authorized, cannot buy or sell in his own name; his business is to bring into privity of contract his principal and the third party. When the contract is made, ordinarily he drops out altogether. Brokers very frequently act as factors also, but, when they do so, their rights and duties as factors must be distinguished from their rights and duties as brokers. It is a broker's duty to carry out his principal's instructions with diligence, skill and perfect good faith. He must see that the terms of the bargain accord with his principal's orders from a commercial point of view, e.g. as to quality, quantity and price; he must ensure that the contract of sale effected by him be legally enforceable by his principal against the third party; and he must not accept any commission from the third party, or put himself in any position in which his own interest may become opposed to his principal's. As soon as he has made the contract which he was employed to make, in most respects his duty to, and his authority from, his principal alike cease; and consequently the law of brokers relates principally to the formation of contracts by them.
The most important formality in English law, in making contracts for the sale of goods, with which a broker must comply, in order to make the contract legally enforceable by his principal against the third party, is contained in section 4 of the Sale of Goods Act 1893, which (in substance re-enacting section 17 of the Statute of Frauds) provides as follows:—"A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods as sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf."
From the reign of James I. till 1884 brokers in London were admitted and licensed by the corporation, and regulated by statute; and it was common to employ one broker only, who acted as intermediary between, and was the agent of both buyer and seller. When the Statute of Frauds was passed in the reign of Charles II., it became the practice for the broker, acting for both parties, to insert in a formal book, kept for the purpose, a memorandum of each contract effected by him, and to sign such memorandum on behalf of both parties, in order that there might be a written memorandum of the contract of sale, signed by the agent of the parties as required by the statute. He would then send to the buyer a copy of this memorandum, called the "bought note", and to the seller a "sold note", which would run as follows:—
- "I have this day bought for you from A B [or "my principal"] ..."
- [signed] "M, Broker."
- "I have this day sold for you to A B [or "my principal"] ..."
- [signed] "M, Broker."
There was in the earlier part of the 19th century considerable discussion in the courts as to whether the entry in a broker's book, or the bought and sold notes (singly or together), constituted the statutory memorandum; and judicial opinion was not unanimous on the point. But at the present day brokers are no longer regulated by statute, either in London or elsewhere, and keep no formal book; and as an entry made in a private book kept by the broker for another purpose, even if signed, would probably not be regarded as a memorandum signed by the agent of the parties in that behalf, the old discussion is now of little practical interest.
Under modern conditions of business the written memorandum of the contract of sale effected by the broker is usually to be found in a "contract note"; but the question whether, in the particular circumstances of each case, the contract note affords a sufficient memorandum in writing, depends upon a variety of considerations—e.g. whether the transaction is effected through one or through two brokers; whether the contract notes are rendered by one broker only, or by both; and, if the latter, whether exchanged between the brokers, or rendered by each broker to his own client; for under present practice any one of these methods may obtain, according to the trade in which the transaction is effected, and the nature of the particular transaction.
Where one and the same broker is employed by both seller and buyer, bought and sold notes rendered in the old form provide the necessary memorandum of the contract. Where two brokers are employed, one by the seller and one by the buyer, sometimes one drops out as soon as the terms are negotiated, and the other makes out, signs and sends to the parties the bought and sold notes. The latter then becomes the agent of both parties for the purpose of signing the statutory memorandum, and the position is the same as if one broker only had been employed. On the other hand, if one broker does not drop out of the transaction, each broker remains to the end the agent of his own principal only, and neither becomes the agent of the other party for the purpose of signing the memorandum. In such a case it is the usual practice for the buyer's broker to send to the seller's broker a note of the contract,—"I, acting on account of A. B. [or, "of my principal,"], have this day bought from you, acting on account of C. D. [or, "of your principal"],"—and to receive a corresponding note from the seller's broker. Thus each of the parties receives through his own agent a memorandum signed by the other party's agent. These contract notes are usually known as, and serve the purpose of, "bought" and "sold" notes. In all the above three cases the broker's duty of compliance with all formalities necessary to make the contract of sale legally enforceable is performed, 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.
- DEAR SIRS,
- We have this day.............. to/from you .............. lb American Cotton, net weight, to be contained in .............. American Bales, more or less, to be delivered in Liverpool, during .............. on the basis of .......... per lb for ............ on the terms of the rules, bye-laws, and Clearing House regulations of the Liverpool Cotton Association, Limited, whether endorsed hereon or not.
- 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.
- ......... per cent to us.
- 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 Liverpool Cotton Association is to make those rules binding upon the principal, and if he employs his broker upon the basis of the printed form, he does bind himself to any modification of the relations between himself and his broker which those rules may effect. The object of the principal clause in the above and similar printed forms is apparently to entitle the broker to sell to or buy from his principal on his own account and not as agent at all, thus disregarding the duty incumbent upon him as broker of making for his principal a contract with a third party.
It is not possible, except very generally, to state how far exchanges have succeeded in imposing their own rules and usages on non-members, but it is probably correct to say that in most cases if the question came before the courts, the outside client would be held to have accepted the rules of the exchange so far as they did not alter the fundamental duties to him of his broker. On the other hand, provisions purporting to entitle the broker in disregard of his duties as broker himself to act as principal, would be rejected by the courts as radically inconsistent with the primary object of the contract of brokerage and, therefore, meaningless. But it is undoubtedly too often the practice of brokers who are members of exchanges to consider themselves entitled to act as principals and sell on their own account to their own clients, particularly in futures. The causes of this opinion, erroneously, though quite honestly held, are probably to be looked for partly in the habit of acting as principal on the market in accordance with the rules, partly in the forms of contract notes containing "principal clauses" which they send to their clients, and perhaps, also, in the occasional difficulty of effecting actual contracts on the market at the time when they are instructed so to do.
(L. F. S.)