INTRODUCTION

The contract of agency is a vital legal concept that underpins many personal and commercial transactions, defining the relationship between a principal and an agent empowered to act on the principal’s behalf. The agent’s role extends beyond their immediate relationship with the principal, as their actions can also involve interactions with third parties, creating legal obligations and responsibilities that must be carefully managed. Understanding the nature of these relationships—especially the agent’s interactions with third parties and other individuals—is crucial for determining rights, duties, and liabilities.

The relationship between an agent and other persons, particularly third parties, is shaped by the agent’s scope of authority and the legal principles governing their actions. An agent may enter into contracts, make representations, or perform acts that legally bind the principal, provided they operate within the agreed-upon limits of their authority. However, the agent’s actions with third parties must align with both contractual obligations and fiduciary duties, ensuring transparency, good faith, and accountability.

DISTINCTION

1. Agent and Servant

An agent occupies a position which is in many respects similar to that occupied by a servant, bailee or trustee. The distinction between an “agent” and a “servant” has been underlined by the Supreme Court in the case of Lakshminarayan Ram Gopal & Sons Ltd. v. Govt. of Hyderabad,[i] wherein the main points of distinction were:

1. An agent has the authority to act on behalf of his principal and to create contractual relations between the principal and a third party. This kind of power is not generally enjoyed by a servant.
2. “A principal has the right to direct what the agent has to do; but a master has not only that right, but also the right to say how it is to be done.”[ii] “A servant acts under the direct control and supervision of his master and is bound to conform to all reasonable orders given to him in the course of his work. But an agent, though bound to exercise his authority in accordance with all lawful instructions…is not subject in its exercise to the direct control of supervision of the principal.”[iii]
3. The mode of remuneration is generally different. A servant is paid by way salary or wages, an agent receives commission on the basis work done.[iv]
4. A master is liable for a wrongful act of his servant if it is committed in the course of the servant’s employment. A principal is liable for his agent’s wrong done within the “scope of authority”.
5. A servant usually serves only one master, but an agent may work for several principals at the same time.[v]

The managing director of a company is an employee of the company, but in the matter of the company’s relation with the third parties he occupies the position of an agent.[vi] Similarly, the secretary of a company in its servant, but in respect of the matters that come under his domain, he becomes an agent in his dealings with third persons.[vii]

1. Agent and Bailee

An agent differs from a bailee in certain respects. Firstly, the relationship of bailor and bailee subsists only so long as the bailee holds some goods belonging to the bailor, but this is not necessary for the subsistence of agency relationship. Sometimes, an agent may be in possession of his principal’s property and to that extent he may also be a bailee. And sometimes an ordinary bailee may become an agent when he is authorised to dispose of the bailor’s property according to his directions. Secondly, an agent is a representative with a power to contract on behalf of his principal. A bailee does not have that power.

• Agent and Buyer

A selling agency has to be distinguished from a transaction resulting in an out and out sale. The legal position of an independent buyer is enormously different from that of an agent.

KINDS OF AGENT

Agents are of several kinds. The word “agent” is used to describe various types of activity. “No word is more commonly and constantly abused than the word agent.  A person may be spoken of as an agent and no doubt in popular sense of the word he may properly be said to be agent, although when it is attempted to suggest that he is an agent under such circumstances as create the legal obligations attaching to agency that use if the word is misleading.

The word ‘factor’ in India as in England, means an agent entrusted with the possession of goods for the purpose of selling them. A broker is also a kind of mercantile agent. He is appointed to negotiate and make contracts for the sale or purchase of property on behalf of his principal, but is not given possession of the goods. A “del credere agent” is another type of mercantile agent. In ordinary cases the only function of an agent is to effect a contract between his principal and a third party.

CREATION OF AGENCY

In the words of Desai J of the Supreme Court: The relation of agency arises whenever one person called the agent has authority to act on behalf of another called the principal and consents so to act. The relationship has its genesis in a contract. The relationship of principal and agent may be created in any of the following ways:

1. By express appointment
2. By the conduct or situation of the parties
3. By necessity of the case
4. By subsequent ratification of an unauthorised act.

Any person who is competent to contract and who is of sound mind may appoint an agent. The appointment may be expressed in writing or it may be oral. In English law no man can become the agent of another expect by the will of that other person.

CONCLUSION

The contract of agency is a dynamic and essential legal relationship that establishes the roles, responsibilities, and interactions between a principal, an agent, and third parties. Understanding the distinctions between agents, servants, bailees, and other related roles is critical for determining the scope of authority, obligations, and liabilities in various transactions. While agents act to create legal relationships on behalf of their principals, the legal duties and nature of their actions depend on their scope of authority and the instructions given to them. Similarly, the types of agents, such as mercantile agents, brokers, and del credere agents, demonstrate the diversity and specialization within agency relationships.

The creation of agency can arise through express appointment, implied conduct, necessity, or ratification, showcasing the flexibility of agency law in accommodating different circumstances and needs. As such, the agency relationship serves as the foundation for many personal and commercial transactions, enabling efficient representation and contractual performance.

By exploring the distinctions, types, and creation of agency, this article provides a comprehensive understanding of the legal principles governing agency relationships. These insights are invaluable for businesses, legal practitioners, and individuals navigating the complexities of contractual obligations and legal authority in various professional settings.

[i] Lakshminarayan Ram Gopal & Sons Ltd. v. Govt. of Hyderabad, AIR 1954 SC 364.

[ii] R. v. Walker, 1858 LJMC 207.

[iii] Performing Right Society Ltd. v. Mitchell & Booker (Palais de Donse) Ltd., (1924) 1 KB 762.

[iv] Qamar Shaffi Tyabji v. Commr., Excess Profits Tax, AIR 1960 SC 1269.

[v] Khedut Sahakari Ginning & Pressing Society v. State of Gujarat, (1971) 3 SCC 480.

[vi] Hely-Hutchinson v. Brayhead Ltd., (1968) 1 QB 549.

[vii] Panorama Development (Guildford) Ltd. v. Fidelis Furnishing Fabrics, (1971) 2 QB 711.