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.
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.