SUBJECT: Special Contract

TOPIC: Agency - features and its

Kinds

SUBMITTED TO: SUBMITTED BY:

Dr Sujata SANKALP
Roll no. 5179
Section C
BA LLB HONS.
(1st Year)
Introduction: What is Agency?
When one party delegates some authority to another party whereby the latter
performs his actions in a more or less independent fashion, on behalf of the
first party, the relationship between them is called an agency. Agency can
be express or implied. Chapter X of the Indian Contract Act, 1872 deals with
the laws relating to Agency. It is important to know the law relating to agency
because nearly all business transactions worldwide are carried out through
agency. All corporations, big or small, carry their work out through agency.
Therefore, laws relating to the agency are an important area of Business Law.
Relationships relating to principal and agent involve three main parties: The
Principal, the Agent, and a Third Party.

Who is an Agent?
The Indian Contract Act, 1872 defines an ‘Agent’ in Section 182 as a person
employed to do any act for another or to represent another in dealing with
third persons.

Who is a Principal?
According to Section 182, The person for whom such act is done, or who is so
represented, is called the “principal”. Therefore, the person who has delegated
his authority will be the principal.

Illustrations

 A, a businessman, delegates B to buy some goods on his behalf. Here,

A is the principal and B is the agent, and the person from whom the
goods are bought is the ‘Third Person’.
 Joe appoints Mary to deal with his bank transactions. In this case, Joe
is the Principal, Mary is the Agent and the Bank is the Third Party.
  Lavanya lives in Mumbai, but owns a shop in Delhi. She appoints a
person Susan to take care of the dealings of the shop. In this case,
Lavanya has delegated her authority to Susan, and she becomes a
Principal while Susan becomes an agent.

Who can appoint an Agent?

According to Section 183, any person who has attained the age of majority
and has a sound mind can appoint an agent. In other words, any person
capable of contracting can legally appoint an agent. Minors and persons of
unsound mind cannot appoint an agent.

Who may be an Agent?

In the same fashion, according to Section 184, the person who has attained
the age of majority and has a sound mind can become an agent. A sound mind
and a mature age is a necessity because an agent has to be answerable to the
Principal.

Creation of Agency
An agency can be created by:

Direct (express) appointment– The standard form of creating an agency is

by direct appointment. When a person, in writing or speech appoints another
person as his agent, an agency is created between the two.

Implication– When an agent is not directly appointed but his appointment

can be inferred from the circumstances, an agency by implication is created.

Necessity– In a situation of necessity, one person can act on behalf of another

to save the person from any loss or damage, without expressly being appointed
as an agent. This creates an agency out of necessity.
Estoppel– An agency can also be created by estoppel. In a situation where
one person behaves in such a manner in front of a third person, as to make
someone believe he is an authorized agent on behalf of someone, an agency
by estoppel is created.

Ratification– When an act of a person, who acted as another person’s agent

(on his behalf) without his knowledge is later ratified by that person, this
creates an agency by ratification between the two.

Types of Agents
1. Special Agent- Agent appointed to do a singular specific act.
2. General Agent- Agent appointed to do all acts relating to a specific
job.
3. Sub-Agent-An agent appointed by an agent.
4. Co-Agent- Agents together appointed to do an act jointly.
5. Factor- An agent who is remunerated by a commission (one who looks
like the apparent owner of the things concerned)
6. Broker- An agent whose job is to create a contractual relationship
between two parties.
7. Auctioneer- An agent who acts a seller for the Principal in an auction.
8. Commission Agent- An appointed to buy and sell goods (make the
best purchase) for his Principal
9. Del Credere- An agent who acts as a salesperson, broker and
guarantor for the Principal. He guarantees the credit extended to the
buyer.

Authority of an Agent
Authority of an agent can be both express or implied.

Express authority
According to Section 187, the authority is said to be express when it is given
by words spoken or written.

Implied authority
According to Section 187, authority is said to be implied when it is to be
inferred from the facts and circumstances of the case. In carrying out the work
of the Principal, the agent can take any legal action. That is, the agent can do
any lawful thing necessary to carry out the work of the Principal.

Implied authority is of four main types

1. Incidental authority- doing something that is incidental to the due

performance of express authority
2. Usual authority- doing that which is usually done by persons
occupying the same position
3. Customary authority- doing something according to the pre-
established customs of a place where the agent acts
4. Circumstantial authority- doing something according to the
circumstances of the case

Illustration

 Ali owns a shop in Bihar but lives in Mumbai. His shop is managed by
a person named John. John takes care of the deals regarding the shop
and buys goods from a person named Ram, with Ali’s knowledge. In
this case, John has implied authority from Ali to buy these goods.
 Soham employed Abhay, who is a shipbuilder to build ships for him.
In doing so, Abhay may legally buy all the material necessary to build
the ships.

Case

Chairman L.I.C v. Rajiv Kumar Bhaskar

In this case, as per the salary saving scheme of L.I.C, the employer was
supposed to deduct the premium from the employee’s salary and deposit it
with L.I.C. Upon the death of the employee, it was found by his heirs that the
employer has defaulted in doing so, causing the policy to lapse. A clause in the
acceptance letter was referred to, in which the employer had said that he would
act as the agent of the employee and not as that of L.I.C. It was held that the
employer was acting as the agent of the company, thereby making the
company (L.I.C) responsible as a Principal due to the fault of the Agent (the
employer).

Agency between Husband and Wife

Generally, there exists no agency between a husband and wife, except in cases
where it has expressly or impliedly been sanctioned that either of them would
do certain acts or transactions as the agent of the other. That is, a relationship
of agency can come into existence between the two through contract,
appointment, or ratification. A husband is responsible for necessaries to his
wife when they are living apart due to the husband’s fault. This results in an
agency of necessity where the wife can use her husband’s credit for what is
necessary for her to live. But in cases where they are separated because of
the wife’s own whims or faults, for no just reason, the husband is not liable for
the wife’s necessaries.

Sub-Agent

Who is a sub-agent?
An agent may sometimes delegate the duty that has been delegated to him by
the Principal to somebody else. Ordinarily, an agent cannot delegate the duty
he is supposed to perform himself to another person (delegatus non potest
delegare- discussed below), except in particular circumstances where he must,
out of necessity, do so. Section 191 of the Indian Contract Act, 1872 defines
a sub-agent to be a person employed by and acting under the control of the
original agent in the business of the agency.
Difference between sub-agent and substituted
agent
The difference between sub-agent and the substituted agent is very
fundamental. When a person, in the capacity of an agent, is asked
to name someone for a certain task, the person who is named does not
become a sub-agent to the Principal, but a substituted agent.

Illustration

Sarah asks her solicitor to appoint an auctioneer to sell her antique

merchandise. Her solicitor appoints Naaz as an auctioneer. In this case, Naaz
is not a sub-agent but is, in fact, a substituted agent for this sale.

Agency by Ratification
A principal may subsequently ratify an act done by a person who acted on his
behalf without his permission or knowledge. If the act is ratified, a relationship
of the agency will come into existence and it will be as if he had previously
authorized the person to act his agent. Ratification may be express (by speech
or writing) or implied (by act or conduct).

Illustration

Steve bought apples on behalf of Mark, without his permission or knowledge.

Mark later sold those apples to another person. This act of mark impliedly
ratifies the purchase made by Steve.

Ratification is not allowed in the following

cases
1. When the person’s knowledge of the facts of the case is defective.
That is, he only half knows things that he is ratifying to.
 2. An act done on behalf of another person which would have the effect
of injuring or harming the person or violating any of his rights if the
act was done with his authority.

Termination of Agency
An agency can be terminated or is terminated in 5 different ways:

1. When the agent’s authority is revoked by the Principal

2. When the agent renounces the business of the agency
3. When the business of the agency is completed
4. When either of the parties dies or becomes mentally disabled
5. When the Principal is adjudicated an insolvent

Revocation of Agent’s authority

There are certain rules regarding the revocation of an agent’s authority.

1. It can be revoked any time before the authority has been exercised.
2. If according to the terms of the contract between the two, the agency
has to continue upto a certain time, any prior revocation by the
Principal shall be compensated for, to the agent.
3. The termination does not take effect before it has been communicated
to the agent.
4. Termination of the authority of an agent terminates the authority of
all the sub-agents under him.

Agent’s duties to Principal

An agent has 6 duties towards his Principal:

1. He has to conduct the business of the Principal according to the

directions of the Principal.
 2. An agent is bound to conduct the business he is supposed to conduct
with as much skill as a person on his position ordinarily holds.
3. An agent is supposed to show the relevant accounts to the Principal
as and when the Principal demands.
4. An agent has the duty to communicate any difficulty whatsoever he
may come across while doing the Principal’s business. He is supposed
to perform due diligence in this regard.
5. If any material fact has been concealed or the business is not carried
out in the manner that the Principal directed, the Principal can
repudiate the contract between them.
6. If the agent carries out the business in the manner he wanted to
perform it, rather than on the directions of the Principal, the Principal
may claim from the agent any benefit he may have achieved through
doing so.

Illustration

Hala directs her agent Saima to buy a certain house for her. Saima does not
buy the house, and tells Hala that it cannot be bought due to certain reasons,
but ends up buying the house herself. In this case, Hala has the right to claim
the house from Saima at the price which Saima bought it for herself.

Principal’s duties to Agent

The Principal has 4 duties towards the Agent:

1. The Principal is bound to indemnify the agent against any lawful acts
done by him in the exercise of his authority as an agent.
2. The Principal is bound to indemnify the agent against any act done by
him in good faith, even if it ended up violating the rights of third
parties.
3. The Principal is not liable to the agent if the act that is delegated is
criminal in nature. The agent will also in no circumstances be
indemnified against criminal acts.
 4. The Principal must make compensation to his agent if he causes any
injury to him because of his own competence or lack of skill.

Liability of Principal for Agent’s Fraud or

Misrepresentation
According to Section 238, The Principal is liable for any fraud or
misrepresentation made by his agent during the course of his business, as if
the fraud or misrepresentation was done by the Principal himself.

Rights of an Agent
An agent has the following 5 rights:

1. Right of retainer– An agent has the right to retain any remuneration

or expenses incurred by him while conducting the Principal’s business.
2. Right to remuneration– An agent, when he has wholly carried out
the business of the agency has the right to be remunerated of any
expenses suffered by him while conducting the business.
3. Right of Lien on Principal’s property- The agent has the right to
hold (keep with himself) any movable or immovable property of the
Principal until his due remuneration is paid to him by the Principal.
4. Right to be Indemnified– The agent has the right to be indemnified
against all the lawful acts done by him during the course of conducting
the Principal’s business.
5. Right to Compensation– The Agent has the right to be
compensated for any injury or loss suffered by him due to the lack of
skill and competency of the Principal.

Conclusion
Contracts establishing a relationship of the agency are very common in
business law. These can be express or implied. An agency is created when a
person delegates his authority to another person, that is, appoints them to do
some specific job or a number of them in specified areas of work.
Establishment of a Principal-Agent relationship confers rights and duties upon
both the parties. There are various examples of such a relationship: Insurance
agency, advertising agency, travel agency, factors, brokers, del credere
agents, etc.

BIBLIOGRAPHY
LIST OF BOOKS REFERED

1. Allen, Devin E., “Asian Contract Law”, (1972), published by Cambridge

University Press.

2. Anson, W.R., “Principles of the English Law of Contract and of Agency in

its relation to contract”, ed. 21st (1959), Oxford at the Clarendon Press,
London.

3. Anand, R.L. & Iyer, Commentary on the Specific Relief Act, 1963 (Act No.
47 of 1963), ed.12th, (2011), Delhi Law House.

4. Atiyah P.S., “The Rise and fall of freedom of Contract”, (1985), Clarendon
Press, London.
5. Atiyah, P.S., “Introduction to the Law of Contract”,(1995), and ed.6th,
(2005) published by Clarendon Press, Oxford.

6. Awasthi, S.K., “Digest on Indian Contract Act, 1872: with allied

legislations”, ed.1st, (1999), Dwivedi & Co., Allahabad.

7. Bangia, R.K. (Dr.), “Law of Contract & Specific Relief with Special
emphasis on Law of Tender”, 1994(1), reprint 2015.

8. Beatson, J., “Anson‟s Law of Contract”, ed.27th, (1998), and ed.28th,

(2002), published by Nairobi: Oxford University Press.
9. Bhadbhade, Neelima, “Contract Law in India”, ed.2nd, (2012), published
by Kluwer Law Intl.

10. Chawla, R.C. & Garg, K.C., “Business and Company Law”, ed.1st, (1996),
Kalyani Publishers, New Delhi.