Central University of South Bihar

CONTRACT OF AGENCY

SUBMITTED BY SUBMITTED TO

UTSAV KUMAR Dr. Anurag Agarwal

Enrolment Number Assistant Professor

CUSB2113125125 School of Law & Governance

BA LLB(Hons) Central University of South Bihar

3rd Semester

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Anurag Agarwal, who gave me assignment of such relevant topic
made me work towards knowing the subject with a greater interest and enthusiasm and moreover
respected professor guided me throughout the project.
I owe the present accomplishment of my project to my faculty and colleagues, who helped me
throughout the project regarding the sources of the material needed for this assignment. I am much
obliged to them. I would like to extend my gratitude to my parents and all those unseen hands who
helped me out at every stage of my project.

Thanking you!!!

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 TABLE OF CONTENT

S. No. CONTENT P. No.

1 INTRODUCTION 4

2 APPOINTMENT AND AUTHORITY OF AN AGENT 4-5

3 DUTIES AND RIGHTS OF AN AGENT IN A CONTRACT OF AGENCY 6-9

4 CONCLUSION 9

5 BIBLIOGRAPHY 10

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INTRODUCTION

According to Section 182 of the Indian Contract Act 1872, “An agent is a person employed to do any
act for another or to represent another in dealings with third persons.”1Thus, it is clear that an agent
is basically that person who acts on behalf of another by functioning for the said person and handling
his dealings.” The person on whose behalf the said agent functions is called as the ‘principal’, and
principal has been defined in the same section as “The person for whom such act is done, or who is so
represented, is called the principal. 2

However, it must be noted that not anyone can become an agent, or be appointed as an agent. The bare
minimum criterion for being considered as a candidate to become an agent has been set in Section 183
of the same Act, and it states that any person can be an agent provides that he is above the age of
majority. Thus, it can be contended that a minor cannot be an agent. This is even corroborated in the
fact that irrespective of the sort of contract, the Indian Contract Act 1872 bars minors from entering
into a contract, and thus, any contract formed with a minor is void ab initio. Apart from this, it must
also be stated at this point that Section 184 of the same Act also prevent any person who is not of
sound mind from entering into a contract of agency, and thus, a person with unsound mind cannot
become an agent.

Thus, to elaborate, a person who is employed by one to do his dealings in his place is called the agent,
and the person taking in the agent to do his dealings is known as the principal. The contract formed
between them is referred to as the contract of agency. The agent is endowed with different sets of
liabilities and responsibilities on account of the contract so formed with the principal. In this paper,
an attempt shall be made to try and look at the role that an agent plays in a contract of agency. It shall
try to look at the duties and responsibilities of an agent in a contract of agency, and shall also try to
determine the role played by the agent in relation to the authority endowed in him by the principal on
account of the contract of agency.

APPOINTMENT AND AUTHORITY OF AN AGENT

Not all people are eligible to be appointed as an agent of another. There are two conditions needed to
be satisfied for becoming an agent. First, the agent should be of a sound mind. Second, the agent should
be a major.

Any person who is of the age of majority according to the law to which he is subject, and who is of
sound mind, may employ an agent.3 As between the principal and third persons, any person may
become an agent, but no person who is not of the age of majority and of sound mind can become an
agent, so as to be responsible to his principal according to the provisions in that behalf herein
contained.4

1
Section 182, Indian Contract Act, 1872.
2
Ibid.
3
Section 183
4
Section 184

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No consideration is necessary to create an agency.5

Black’s Law Dictionary defines authority as, “The right or permission to act legally on another's
behalf; esp., the power of one person to affect another's legal relations by acts done in accordance with
the other's manifestations of assent.”6

There are two ways in which the authority can be determined:

• Express: In which the agreement specifies certain duties to the agent and the agent is required to
do the duties specified. An authority is said to be express when it is given by words spoken or
written.
• Implied: 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.7 In the case of Ryan v. Pilkington8, an estate agent was appointed to
find a purchaser for certain property. He accepted a deposit from a customer and misappropriated
it. The principle was held liable, because an estate agent has an implied authority to take deposit.
He cannot however, receive payment or give any warranty unless actually authorised.

Thus, the scope of an agent’s authority, whether implied or expressed, relies upon- (1) The nature of
business or act he is appointed to do, (2) Things which are associated with a business or are usually
done in carrying it out and, (3) The usual usages and customs of the trade.

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.9

An agent is required to exercise lawful means to execute his duty. An act done in an illegal way will
not be considered within the scope of an agent’s authority. For e.g. A appoints B to auction his car.
One way is to sell the car by fair means. Another way is that B can fraud anyone to buy that car, which
is an illegal act. So, the act of fair auctioning will be under the scope of agent’s authority but
committing fraud won’t be under the scope of agent’s authority as it’s an illegal act.

Section 189 of the Indian Contract Act states that, “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.”

A principle is bound by the act of the agent which is authorised by him and any act which is done
beyond the authority won’t bind the principal.

DUTIES AND RIGHTS OF AN AGENT IN A CONTRACT OF AGENCY

• DUTIES OF AN AGENT

5
Section 185
6
Garner, B. and Black, H. (2009). Black's law dictionary. 9th ed. USA, p.152.
7
Section 187
8
(1959) 1 WLR 403
9
Section 188

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Mutual rights and duties of principal and agent may be wholly provided for in their contract. But the
following duties of general nature are imposed by law upon every agent, unless they are modified or
excluded by special contract.

1.Duty not to delegate:

Delegatus non protest delegare is a well-known maxim of the law of agency. The principal chooses a
particular agent because he has trust and confidence in his integrity and competence. Ordinarily,
therefore, the agent cannot further delegate the work which has been delegated to him by the principal.
Section 190 provides that an agent cannot lawfully employ another to perform acts which he has
expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-
agent may, or, from the nature of the agency, a sub-agent must, be employed.

2. Duty to follow instructions or customs:

Section 211 provides for Agent’s duty in conducting principal’s business. The agent is bound to
conduct the business of his principal and to keep himself within the confines of his authority. In the
absence of directions, the agent has to follow the custom which prevails in business of the same kind
and at the place where the agent conducts such business. When the agent acts otherwise, if any loss be
sustained, he must make it good to his principal, and if any profit accrues, he must account for it.

3. Duty of reasonable care and skill:

Section 212 provides for skill and diligence required from agent. The standard of care and skill which
an agent has to bestow depends upon the nature of the profession. If the principal suffers any loss
owing to the agent’s want of care or skill, the agent must compensate the principal for such loss.
Section 212 limits the agent’s liability to “direct consequences”. It provides that the agent must make
compensation to his principal in respect of the direct consequences of his own neglect, want of skill or
misconduct, but not in respect of any loss or damage which is indirectly or remotely caused by such
neglect, want of skill or misconduct.

4.Duty to maintain accounts:

Section 213 provides that an agent is bound to render proper accounts to his principal on demand.
Accounts are necessary for the proper performance of the agent’s other duties, for example, the duty
to remit sums to the principal. There is no provision in the Act enabling an agent to institute a suit for
accounts against the principal.

5. Duty to communicate with the principal:

Section 214 provides that it is the duty of an agent, in cases of difficulty, to use all reasonable diligence
of communicating with his principal, and in seeking to obtain his instructions. Where the agent
informed his principal that purchases have been affected on his behalf and subsequently confirmed it
by reporting that the goods would be despatched as soon as transport strike was over whereas he had
done nothing in the matter, it was held by the Supreme Court that such a neglect and misconduct of
the agent misinforming the principal was squarely within the wide terms of Section 212. “He must
bear the brunt to pay damages” the court said.10

10
Jayabharathi Corpn v. Sv. P.N.Sn. Rajasekara Nadar, 1993 Supp (1) SCC 401: AIR 1992 SC 596.

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6. Duty to avoid conflict of interest:
Section 215 provides the right of principal when agent deals, on his own account, in business of agency
without principal’s consent. And Section 216 provides for principal’s right to benefit gained by agent
dealing on his own account in business of agency. An agent occupies fiduciary position and, therefore,
it is his duty not to do anything which would bring his personal interest and his duty to the principal
in conflict with each other. This conflict invariably arises when the agent is personally interested in
the principal’s transaction, for example, where he himself buys the property, he is appointed to sell or
delivers his own goods when he is instructed to buy on behalf of the principal. In firm of Rameshardas
Benarashidas v. Tansookhrai Bashesharilal Firm11, the principal incorporated in section 215, which
provides that if an agent deals on his own account in the business of agency, without first obtaining
the consent of his principal and acquainting him with full facts, the principal may repudiate the
transaction if he can show that –
(a) a material fact has been dishonestly concealed from him, or
(b) the dealing of the agent has been disadvantageous to him.

7. Duty not to make secret profit:

Another aspect of this principle is the duty of the agent not to make any secret profit in the business of
agency. His relationship with the principal is of fiduciary nature and this requires absolute good faith
in the conduct of agency. What is meant by secret profit? It means any advantage obtained by the agent
over and above his agreed remuneration and which he would not have been able to make but for his
position as agent.

8. Duty to remit sums:

Section 218 provides for agent’s duty to pay sums received for principal. The agent is bound to pay to
his principal all sums received on his account. The agent is, however, entitled to deduct his lawful
charges, but only subject to this right, the principal’s money must be remitted to him even if it has
been received in pursuance to a void or illegal contract. The agent has to perform this duty even his
earnings for the principal flow out of void or illegal transactions.

11
Rameshardas Benarashidas v. Tansookhrai Bashesharilal Firm, AIR 1927 Sind 195.

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RIGHTS OF AN AGENT

The following are some of the important rights of the agent:

1. Right to remuneration:
Section 219 provides for agent’s right to remuneration. Every agent is clearly entitled to his agreed
remuneration, or if there is no agreement, to a reasonable remuneration. Where the amount of
remuneration is left on principal’s discretion, even then reasonableness would be the criterion.

Effect of misconduct:
Section 220 provides that the agent is not entitled to remuneration for business misconducted. Section
220 accordingly provides that an agent who is guilty of misconduct in the business of agency, is not
entitled to any remuneration in respect of that part of the business which he has misconducted. The
effect of misconduct is two-fold. First, the agent forfeits his right to commission. This is irrespective
of any loss suffered by the principal. The principle underlying the rule is that a principal is entitled to
have an honest agent and it is only the honest agent who is entitled to any commission. The commission
is forfeited only in respect of that part of the agency business which has been misconducted.

2. Right of retainer:
Section 217 provides for right of retainer out of sums received on principal’s account. The agent has
the right to retain his principal’s money until his claims, if any, in respect of his remuneration or
advances made or expenses incurred in conducting the business of agency are paid. The right can be
exercised on any sums received on account of the principal in the business of the agency. He can retain
only such money as in his own possession. He is not entitled to an equitable lien, that is, the right to
have his claims satisfied in preference to other creditors out of the principal’s money not in his
possession.

3. Right to lien:
Section 221 provides for agent’s lien on principal’s property. The effect of lien as between principal
and the agent has been thus stated by A.H. Khan J. in Gopaldas v. Thakurdas12: The agent’s lien does
not give unrestricted authority to the agent to deal with the property in any manner the agent may like.
The right is limited in nature. It enables the agent to retain the property till his dues are paid. But this
confers no authority on the agent to sell or otherwise dispose of the property without the consent of
the owner.

4. Right to indemnity:
Section 222 provides for agent’s right to indemnity. The right to indemnity extends to all losses and
expenses incurred by the agent in the conduct of the business. The agent must have been dimnified in
the lawful conduct of the business of agency. A wagering agreement is not unlawful. It is only void.
Accordingly, the Supreme Court in Kishanlal v. Bhanwar Lal13, allowed an agent to recover indemnity
for losses incurred by him in wagering transactions entered into on instructions of his principal. Section

12
Gopaldas v. Thakurdas, AIR 1957 MB 20, 22.
13
Kishanlal v. Bhanwar Lal, 1954 AIR 500.

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223 provides that agent is to be indemnified against consequences of acts done in good faith. In
Adamson v. Jarvis14, An auctioneer sold certain cattle on instructions from the defendant and was held
liable to the true owner for conversion. He recovered indemnity from the principal because the act in
question was apparently lawful. Section 224 states that where the act in question is apparently tortuous,
the agent, who has been held liable on it, may recover contribution from the principal (not indemnity)
under the Law Reform (Married Women’s and Tortfeasors) Act, 1955.

5. Right to compensation:
Section 225 provides for compensation to agent in case of injury caused by principal’s neglect. Thus,
every principal owes to is agent the duty of care not to expose him to unreasonable risks.

CONCLUSION

Under the Indian Contract Act 1872, agents are basically people who have been entrusted to work on
behalf of the principal. The principal is therefore the person who engages and employs the agent. The
agent can be anyone who is competent enough to form a contract, i.e., a person who is not under the
majority age, and also someone who does not suffer from insanity or an unsound mind.
The agent is then granted a particular level of authority on the basis of his work by the principal, the
authority being either express or implied. It can also be divided into specific and general authority; the
former denoting the agent has been bestowed with authority to act on behalf of the principal in a
particular manner in certain specific situations, wherein general authority is such that it allows the
agent to function in a wide variety of areas, not limited by any specifications. However,
misrepresentations or frauds committed by the agent in course of pursuance of his duties as an agent
have the same effect as that of the principal doing the same. Moreover, in cases where the agent
exceeds the authority bestowed on him by the principal, and acts in a particular way, then unless the
act in which the agent did have authority bestowed on him and he act that he committed without the
necessary authority can be separated, the principal is not bound to accept whatever has been done by
the agent.
The contract of agency also provides an option for indemnifying or compensating either party of the
contract and the basics of indemnity in a contract of agency has been highlighted under Sections 222,
223 and 225 of the Indian Contact Act 1872. However, the limitation period for the agent suing the
principal for any money is 3 years since the cause of action first arises, according to the provisions of
the Limitations Act. An employer is bound to indemnify an Agent against all the consequences of all
lawful acts done by such Agent in the exercise of the authority conferred upon him. The agent is also
to be compensated for any loss caused to him due to want of skill or neglect on part of the principal,
according to the provisions of section 225.

Thus, to conclude, the contract of agency is a very unique kind of contract, wherein a person is given
the authority to enter into the agency, and work on behalf of the principal, and is also liable to be
compensated and indemnified for any loss incurred by him in his duty.

14
Adamson v. Jarvis, (1827) 4 BING 66.

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BIBLIOGRAPHY

BOOKS

AVATAR SINGH’S CONTRACT AND SPECIFIC RELIEF

CONTRACT II, R.K. BANGIA

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