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.

AGENT’S AUTHORITY

The ats of the agent within the scope of his authority bind the principal.[i] Section 226 of the Contract Act gives statutory effect to the principle by declaring that: Contracts entered into through an agent, and obligations arising from acts done by an agent, may be enforced in the same manner, and will have the same legal consequences as if the contracts had been entered into the acts done by the principal in person.

It is necessary for this effect to follow that the agent must have done the act within the scope of his authority. The authority of an agent and more particularly its scope are subjects of some controversy.[ii]  The uncertainty is largely due to the fact that the authority of an agent does not depend upon one source. It emanates from the principal, but its dimensions depend upon legal inferences, which, in turn, depend upon the purpose of the agency, the surrounding circumstances and a desire to protect bona fide commercial transactions. For, agency came into being to promote and not to hinder commerce.[iii]

The authority of an agent means his capacity to bind the principal. It refers to the sum total of the acts it has been agreed between principal and agent that the agent should do on behalf of the principal. When the agent does any of such acts, it is said he has acted within his authority.[iv]

Actual authority of an agent is the authority conferred on him by the principal. It is of two kinds, namely, express or implied. Section 186 and 187 provide this: The authority of an agent may be expressed or implied; An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.

Where the authority is conferred by words, spoken or written, it is called express authority. A power of attorney, for example, which is a kind of deed and authorises the agent to do certain acts, is an illustration of express authority. But, however precisely the authority of an agent may be drawn, disputes as to its scope are likely to arise. The scope of express authority is worked out by construction of the words used in the documents. For example, where a principal, while going abroad, authorised his agent and partner to carry on the business, and his wife to accept bills on his behalf for his personal business, he was held not bound when his wife accepted bills for the business, which the agent was conducting and which was different from his personal business.[v] The decision has been criticised, particularly because the agent and the third party had acted in good faith to meet the principal’s genuine business needs. Accordingly, in a subsequent case of agency by power of attorney, where the agent obtained a loan outside his authority by signing a cheque on behalf of his principal to pay the principal’s workmen, the principal was held to be bound.[vi]

An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written or the ordinary course of dealing, may be accounted circumstances of the case. Implied authority is an instance of real or actual authority for it is conferred upon the agent by the conduct of the principal as interpreted in the circumstances of the case. Thus, the extent of an agent’s authority, whether express or implied depends upon –

• The nature of the act or business he is appointed to do;
• Things which are incidental to the business or are usually done in carrying it out;[vii]
• The usual customs and usages of the trade.

This is the essence of Section 188 which defines the extent of the agent’s authority in the following words: An agent having an authority to do an act has authority to do every lawful thing which is necessary in order to do such act. An agent having an authority to carry on a business, has authority to do every lawful thing necessary for the purpose, or usually done in the course, of conducting such business.

Ostensible or apparent authority is the authority of an agent as it appears to others. It often coincides with actual authority. The doctrine of ostensible authority is given statutory shape in Section 237 of the Contract Act as “When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agent’s authority.”

An agent’s authority in emergency is given under Section 189 as “An agent has authority, in an emergency, to do all such acts for the purpose of protecting his principal from loss as would be done by a person of ordinary prudence, in his own case under similar circumstances.” This section creates a special authority in emergency. It constates the agent into an agent of necessity to counteract the emergent situations. An act done in the exercise of this extended authority would bind the principal if the agent was not able to communicate with his principal and the course he took was necessary in the sense that it was the only reasonably prudent course left open to him and that he acted in good faith in the interest of the parties concerned.

Section 238 of the Contract Act lays down the principle by which the liability of the principal for the wrongful acts of the agent is to be determined. Misrepresentation made or frauds committed, by agents acting in the course of their business for their principals, have the same effect on agreements made by such agents as if such misrepresentations or frauds had been made or committed by the principals; but misrepresentations made, or frauds committed, by agents, in matters which do not fall within their authority, do not affect their principals.

CONCLUSION

The contract of agency is a fundamental aspect of both personal and commercial law, as it establishes the relationship between a principal and an agent and outlines the legal authority under which an agent acts. The agent’s authority—whether express, implied, or ostensible—determines the extent to which they can bind the principal in dealings with third parties. The principal is held accountable for the actions of the agent, provided those actions fall within the scope of the agent’s authority or are done in good faith under emergency circumstances. Additionally, the legal framework emphasizes the importance of fiduciary duties, transparency, and accountability, ensuring that the agent’s actions reflect the principal’s interests. Understanding these dynamics is crucial for the protection of all parties involved in agency relationships, promoting fairness and the smooth functioning of commercial transactions.

 

[i] Polestar Electronics (P) Ltd. v. CST, (1978) 1 SCC 636.

[ii] The Basis of the Power of an Agent in Cases of Actual and Apparent Authority, (1938) 16 Can BR 757.

[iii] Kamlesh v. Jasbir Singh, AIR 2004 P&H 216.

[iv] Nand Lal Thanvi v. Legal Representatives of Goswami Brij Bhushan, (2004) 2 ICC 103.

[v] Attwood v. Munnings, (1827) 7 B&C 278.

[vi] Reid v. Rigby, (1894) 2 QB 40.

[vii] Murugesa v. Province of Madras, AIR 1947 Mad 74.