Contract of Agency: Definition of Agent and Agency; Creation of Agency
A person who performs services for another person under an express or implied agreement and who is subject to the other’s control or right to control the manner and means of performing the services. The other person is called a principal. One may be an agent without receiving compensation for services. The agency agreement may be oral or written.
The person to whom a power of attorney is given. An agent has authority to act on behalf of the grantor, as specified by the grantor in a power of attorney document.
An agreement, express , or implied, by which one of the parties, called the principal, confides to the other, denominated the agent, the management of some business; to be transacted in his name, or on his account, and by which the agent assumes to do the business and to render an account of it. As a general rule, whatever a man do by himself, except in virtue of a delegated authority, he may do by an agent. Hence the maxim qui facit per alium facit per se.
When the agency is express, it is created either by deed, or in writing not by deed, or verbally without writing. When the agency is not express, it may be inferred from the relation of the parties and the nature of the employment without any proof of any express appointment.
The agency must be antecedently given, or subsequently adopted; and in the latter case there must be an act of recognition, or an acquiescence in the act of the agent, from which a recognition may be fairly implied.
Creation of Agency
Agency system is very popular in the current business scenario. There are two parties in the agency system one is the principal and another the agent. An agent is a person acting on behalf of his principal. It’s a connecting link between the principal and the third party. Herein we will discuss the creation of agency under Indian Contract Act, 1872.
Creation of Agency
A contract of agency may be express or implied. Consideration is not an essential element in agency contract. Agency contract may also arise by estoppel, necessity or ratification.
Types of an Agency Contract
A contract of agency can be made orally or in writing. Example of a written contract of agency is the Power of Attorney that gives a right to an agency to act on behalf of his principal in accordance with the terms and conditions therein.
A power of attorney can be general or giving many powers to the agent or some special powers, giving authority to the agent for transacting a single act.
Implied agency arises when there is any conduct, the situation of parties or is necessary for the case.
a. Agency by Estoppel (Section 237)
Estoppel arises when you are precluded from denying the truth of anything which you have represented as a fact, although it is not a fact.
Thus, where P allows third parties to believe that A is acting as his authorized agent, he will be estopped from denying the agency if such third-parties relying on it make a contract with an even when A had no authority at all.
b. Wife as Agent
Where a husband and wife are living together, we presume that the wife has her husband’s authority to pledge his credit for the purchase of necessaries of life suitable to their standard of living. But the husband will not be liable if he shows that:
(i) He had expressly warned the tradesman not to supply goods on credit to his wife; or
(ii) He had expressly forbidden the wife to use his credit; or
(iii) He already sufficiently supplies his wife with the articles in question; or
(iv) He supplies his wife with a sufficient allowance.
Similarly, where any person is held out by another as his agent, the third-party can hold that person liable for the acts of the ostensible agent, or the agent by holding out. Partners are each other’s agents for making contracts in the ordinary course of the partnership business.
c. Agency of Necessity (Sections 188 and 189):
In certain circumstances, a person who has been entrusted with another’s property may have to incur unauthorized expenses to protect or preserve it. This is called an agency of necessity.
For example, a sent a horse by railway. On its arrival at the destination, there was no one to receive it. The railway company, is bound to take reasonable steps to keep the horse alive, was an agent of the necessity of A.
A wife deserted by her husband and thus forced to live separate from him can pledge her husband’s credit to buy all necessaries of life according to the position of the husband even against his wishes.
d. Agency by Ratification (Sections 169-200):
Where a person not having any authority act as agent, or act beyond its authority, then the principal is not bound by the contract with the agent in respect of such authority. But the principal can ratify the agent’s transaction and accept liability. In this way, an agency by ratification arises.
This is ex post facto agency— agency arising after the event. By this ratification, the contract is binding on principal as if the agent had been authorized before. Ratification will have an effect on the original contract and so the agency will have effect from original contract and not on ratification.