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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

DELEGATES NON POTEST DELEGARE – IN AGENCY

SUBJECT

CONTRACT S LAW - I

NAME OF THE FACULTY

MS. SUNEETHA MAM

NAME OF THE CANDIDATE: PRATHIPATI.NAVYA

ROLL NUMBER : 2017067

SEMESTER : II

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ACKNOWLEDGEMENT

I would like to express my heartfelt gratitude to our contracts law teacher Suneetha mam for
giving me this wonderful opportunity to do a project on Legal maxim- Delegatus non potest
delegare. I have put all my efforts to collect the information and to complete this project.

I would also extend my thanks to Suneetha mam for her support, guidance and
encouragement throughout the project. I would also like to thank my friends and family for
their support throughout the project.

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TABLE OF CONTENTS

ACKNOWLEDGEMENT-------------------------------------------------------------------------------2

TABLE OF CONTACTS------------------------------------------------------------------------------3

ABSTRACT----------------------------------------------------------------------------------------------4

RESEARCH DESIGN-----------------------------------------------------------------------------------5

INTRODUCTION---------------------------------------------------------------------------------------9

HISTORICAL BACKGROUND----------------------------------------------------------------------9

CONCEPTUAL FRAMEWORK---------------------------------------------------------------------10

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ABSTRACT

Delegatus non potest 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 his principal.

The general rule is “Delegatus non-potest delegare” the meaning of this maxim is that an
agent to whom another has delegated his own authority (has reposed confidence), cannot
delegate that authority to a third person. This rule is based on the principle that agency is a
contract based on trust and mutual confidence between the parties. A principal may have
mutual confidence in his agent but not in the subsequent sub-agent appointed by the
agent.Sec 190 of the Contract Act deals with delegation of an authority by the agent.

S.190.When agent cannot delegate. - 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.

In this section the exceptions are also mentioned. In other words, delegated authority cannot
be re-delegated unless there is some reason why it should be. This is not altogether self-
evident and might determine the burden of proof in a particular case; but a maxim weighed
down with such a very large exception needs strong support if it is to pose as "a primal axiom
of jurisprudence."

Section 190- 193 of Indian contract act deals with this delegation. These all sections are
explained with the help of case laws in each aspect and also the meaning and history of this
legal maxim and it’s usage in agency of Indian contract act explained in detail in further
project.

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RESEARCH DESIGN

Title of the Research topic: Delegatus non potest delegare – In Agency

Introduction:

Delegatus non potest delegare is the well – Known maxim of Law of Agency. It means that
an agent to whom another has delegated his own authority (has reposed confidence), cannot
delegate that authority to a third person. Legal rule that an agent to whom an authority or
decision making power has been delegated by a principal or higher authority may not
delegate it to a sub agent unless the original delegator expressly authorizes it, or there is an
implied authority to do so.

Research Question:

1. What is meant by Delegatus non potest delegare and its applicability in Indian contract
Act?

2. What is the origin and meaning of the legal term Delegatus non potest delegare?

Objective of the study:

The main objective of the study is to find out the etymology and the history of the legal
maxim Delegatus non potest delegare and its applicability in the contract of agency. The
relation of principal and Agent in the matters of delegation is also understood.

Research Methodology:

The Research Methodology used is Doctrinal method of Explanatory & Historical type of
Research.

Literature Review:

The researcher has reviewed many books, websites and Journals for completion of the
project.

Scope of the study:

The legal maxim Delegatus non potest delegare is used as fundamental principle in
administrative law, constitutional law and contract law. We limit our scope of our study to
the applicability of this maxim in the Indian contract law of Agency.

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Significance of the study:

The Significance of the study is it helps to know about this legal maxim and also the relation
between agent and principal in the contract of Agency.

Contents/ Chapters:

The following are the topics which are dealt in the further project in a detailed manner.

1. Introduction

2.

Conclusion:

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INTRODUCTION

The appointment of an agent in any particular case is made, as a rule, because he is supposed
by his principal to have some fitness for the performance of the duties to be undertaken. In
certain cases his appointment is owing to the fact that he is considered to be especially and
particularly fit. The undertaking demands judgment and discretion, which he is supposed to
possess; or it requires the skill and learning of an expert, which he assumes to be; or personal
force and influence are desirable, and these the agent is thought to be able to exercise. Here is
the delectus persona, and it is obvious that unless the principal has expressly or impliedly
consented to the employment of a substitute, the agent owes to the principal the duty of a
personal discharge of the trust. 1

Hence it is the general rule of the law that in the absence of any authority, either express or
implied, to employ a subagent, the trust committed to the agent is presumed to be exclusively
personal and cannot be delegated by him to another so as to affect the rights of the principal.

ETYMOLOTY OF THE MAXIM:

Delegatus non potest delegare is a Latin Maxim. The English meanings of the words are
given below.

Delegatus = delegated
Non = not
Potest = can
Delegare = delegate
Thus Delegatus non potest delegare means “the delegated (person) cannot delegate (further).

Another usage of this maxing is delegata potestas no potest delegare. The English meanings
of the words are given below.

Delegata = delegate
Potestas = power
Non = not
Potest = can

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Delegare = delegated

Thus delegata potestas non potest delegare means delegated authority cannot be delegated.

This maxim means that a person to whom an authority or decision-making power has been
delegated to from a higher source, cannot, in turn, delegate again to another, unless the
original delegation explicitly authorized it2.

HISTORY OF THE TERM:

Even though these similar maxims may have appeared earlier, the most noticeable writing
with the present meaning of the maxim is seen in Sugden’s work Treatise on
Powers. Sugden’s had said,

“Wherever a power is given, whether over real or personal estate, and whether the execution
of it will confer the legal or only equitable right on the appointee, if the power repose a
personal trust and confidence in the doer of it, to exercise his own judgment and discretion,
he cannot refer the power to the execution of another, for delega -us non potest delegare.”3

This refers only to powers of appointment, not to agency; but here again, as in Story, the
wider Latin maxim is merely an after-thought, and delegation is only denied where the
testator relied on the doe’s "judgment and discretion." In “Commentaries on the Law of
Agency” written by Story. he remarks, “One, who has a bare power or authority from another
to do an act, must execute it himself, and cannot delegate his authority to another; for this
being a trust or confidence reposed in him personally, it cannot be assigned to a stranger,
whose ability and integrity might not be known to the principal, or, if known, might not be
selected by him for such a purpose. The reason is plain; for, in each of these cases, there is an
exclusive personal trust and confidence reposed& in the particular party. And hence is
derived the maxim of the common law; Delegata potestas non potest delegari. And the like
rule prevailed, to some extent, in the civil law; Procuratorem alium Procuratorem facere non
posse... .’’

Kent in Kent’s Commentaries gives us the rule with somewhat less qualification than Story.

“An agent ordinarily, and without express authority , has not power to employ a sub-agent to
do the business, without the knowledge or consent of his principal. The maxim is,

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that Delegatus non potest delegare, and the agency is generally a personal trust and
confidence which cannot be delegated; for the principal employs the agent from the opinion
which he has of his personal skill and integrity, and the latter has no right to turn his principal
over to another, of whom he knows nothing.”

The maxim itself is found in the three early cases cited. In Alexander v. Alexander, Sir
Thomas Clarke, M.R., said:

"If there is a power to A, of personal trust or confidence, to exercise his judgment and
discretion, A cannot say this money shall be appointed by the discretion of B for Delegatus
non potest delegare."

In Bristow v. Ward4, counsel for the plaintiffs urged that Delegatus non potest delegare, and
opposing counsel did not dispute the maxim, but said it did not apply. And in Blore v. Sutton
counsel said, argued, "Admitting the principle that Delegatus non potest delegare, this is a
case to be determined by the usual course of management," which would take it out of the
rule. It also appears from a remark in Doe dem. Duke of Devonshire v. Lord George
Cavendish that Lord Mansfield knew the maxim. But none of these four cases gives any hint
of its origin; and none of the judgments rely on its authority.

On this state of the cases, it seems likely that a principal source of the citations is
Branch's Maxims, a book published in 1753 which soon came into very general use. He gives
the fomn "delegata potestas non potest delegari," and refers to Coke, 2 Inst. 597. In this
passage Coke is discussing Distrait of Knighthood, the writ by which holders of knight's fees
were compelled to accept knighthood or pay a fine. Attempts were made to have such cases
tried by roving commissioners; on which Coke says:

This writ and the return thereof is by writ of miittimus transmitted into the court of
exchequer, who cannot make a commission to others concerning this matter, but ought to
proceed legally themselves, because they have but delegatam potestatein, quac non potest
delegari, and they are learned, and sworne judges, and able to allow the parties their just
exceptions.

This naturally means to us: "they have only a delegated power, and delegated power cannot
be delegated;" but it may well have meant to Coke: "they have only a delegated power, and

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moreover one that cannot be delegated. In any case delegation of delegated jurisdiction is
generally undesirable, and condemned by the Digest: mandatam sibi .jurisdictionem mandare
alteri non posse manifestum est. But Coke's latin tag certainly looks like a quotation from
some authoritative source.

There was in fact more than one place where he could have found the words"delegatus non
potest delegare" or something very like them. There is indeed nothing of the kind in
the Corpus Juris Civilis, where delegare and delegatus are very seldom used in the sense of
"delegate"; or among the maxims in the Decretalsor the Sext; or in the collection of maxims
of Bartholomew of Brescia. But the identical phrase occurs in the gloss on texts restricting
subdelegation of delegated jurisdiction; and in Tellez' commentary on the Decretals we find
similar expressions in the same connection. Moreover, the maxim appears (as "Delegatus
delegare non potest") in Flores Legum,published at Paris in 1566, where it is supported by
reference to D. 2.1.5. and C. 3.1.5.

In Coke's day Bracton was the highest, as he is still the most venerable, authority on the
common law, and in the printed text of his De Legibus, from the first edition to the last but
one there appeared the following words:--

Est enim corona regis facere iustitiam et iudicium, et tenere pacem, et sine quibus, corona
consistere non potest, nec tenere. Huius modi autem iura sive iurisdictidnes ad personas vel
tenementa transferri non poterunt, nec a privata persona possideri, nec usus nec execution
iuris, nisi hoc datum fuerit ei de super, sicut jurisdictio delegate non delegari poterit, quin
ordinaria remane at cum ipso rege.

This Sir Travers Twiss translates,

“For the crown of the king is to do justice and judgment, and to maintain peace, and without
which the crown' cannot consist nor hold. But rights and jurisdictions of this kind cannot be
transferred to persons or to tenements, nor be possessed by a private person, nor can the use
nor the execution of right, unless it be given from above, as delegated jurisdiction cannot be
delegated, but ordinary jurisdiction remains with the crown.

EXAMPLE:

An example of the operation of the maxim is given below.

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An attorney given legal authority in a power of attorney cannot, of their own volition, delegate the
exercise of that authority without the consent of the person who granted the power of attorney. This
maxim has numerous applications in Constitutional Law, Administrative Law, and Contract Law etc.

AGENCY

In India, the agent and principle share a relationship that is contractual in nature, and
therefore it is governed by the terms and conditions of the contract between them. Chapter X
of the Indian Contract Act, 1872 provides the basic structure of rules and regulations that
basically govern the performance and formation of any type of contract including the agency
contract. In agency contracts, there exists a legal relationship between two people whereby
one person acts on behalf of the other. The person acting on behalf of the other is called
an agent, and the person from whom the agent derives authority to act is called the principal.
The law of agency is based on the Latin maxim “qui facit per alium, facit per se,” which
means, “he who acts through another is deemed in law to do it himself ’’5.

DEFINITIONS OF PRINCIPAL AND AGENT:

Agent and Principal are defined in Section 182 of the Act in the following words:

S.182. “Agent ‘’ and “principal” defined.- An “agent” is a person employed to do any act
for another, or to represent another in dealings with third persons. The person for whom such
act is done, or who is so represented, is called the “Principal”.

This emphasis is on the power of the agent to represent his principal in dealings with third
persons. What distinguishes an agent from a person appointed to do an act, is the agent’s
representative capacity coupled with a power to affect the legal relations of the principal with
third persons. “The essence of the matter is that the principal authorized the agent to represent
or act for him in bringing the principal into contractual relation with a third person”6.

Section 226 of The Indian Contract Act stipulates 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
and the acts done by the principal in person.” Agent, Principal and third party are the three
parties to the contract.

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APPLICABILITY OF THE MAXIM IN AGENCY:

Sections 190- 193 of the Indian Contract Act deals with the delegated authority i.e Delegatus
non potest delegare.

Duty not to delegate [S.190]

Delegatus non potest 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 his principal.

It was laid down in John McCain and Co v Pow7that unless so authorized by the principal, an
estate agent has no right to appoint a sub- agent and delegate to him his powers which require
special skill and care. No implied authority could be pleaded. In this case the sub- agent
effected a sale on his own account. The agent (Plaintiff) had sued for his commission. The
court negative the claim as the contract of agency did not permit appointment of sub-agent.

This principle and its exceptions are stated in Section 190:

S.190. When agent cannot delegate.- 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.

But there are exceptions. In the following cases the agent may delegate the work to another:

1.Nature of work

Sometimes the very nature of work makes it necessary for the agent to appoint a sub-agent.
For example , an agent appointed to sell an estate may retain the services of an auctioneer and
the one authorized to file a suit may engage a lawyer.

In the case of Summan Singh v. National City Bank of New York,8 A banker instructed to
make payment to a particular person at the particular place ,may appoint a banker who has an
of that place. Summan Singh asked the bank to deposit Rs.10000/- from his account to Pritam
Singh’s account. Pritam Singh who got the money was not the Pritam Singh for whom money

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was meant Samman Singh through his agent Dalip Singh, his father, brought a suit for
recovery of Rs. 12,000/- alleging that he had instructed the City Bank to pay to his son Pritam
Singh at Bad-don in the District of Hoshiarpur and that the defendants, the City Bank and the
Punjab National Bank, never made the payment to Pritam Singh, his son, but negligently paid
it to another Pritam Singh who was Chhimba by caste and was a resident of Gondpur and that
they did not make any proper inquiries about the identity of Pritam Singh before they made
the payment.

It was held therefore (1) that there was a contract between the remitter and the remitting bank
i.e., the City Bank, that the latter will not be liable for the negligence of its agents, (2) that the
authorities show that such a contract can be entered into, (3) that in spite of Section 192 of
the Indian Contract Act it is open to the agent; to contract out of his liability. I am therefore
of the opinion that the appeal of the plaintiff as against the City Bank also must fail. I would
accordingly dismiss the appeal of the plaintiff but in the circumstances of this case I leave the
parties to bear their own costs throughout.

In Mohinder v Mohan9, A banker authorized to let out a house and collect rents may entrust
the work to an estate agent. It was held that the defendants are not responsible to make good
the loss to the plaintiffs in the result I modify the decree of the Court below and reduce the
decretal amount by Rs. 17-10-0 only. In other respects the appeal fails and is dismissed.
Under the special circumstances of the case I order the parties to bear the costs of this Court.
Costs of the Court below as in the decree of that Court. Leave to appeal is refused.

2. Trade Custom

Secondly, a sub-agent may be appointed and the work delegated to him if there is ordinary
custom of trade to that effect.Thus architects generally appoint surveyors.10

3. Ministerial action

An agent cannot, of course, delegate acts which he has expressly or impliedly undertaken to
perform personally, e.g., acts requiring personal or professional skill. But the agent may
delegate acts which are purely ministerial in nature, e.g., authority to sign.

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4. Principal’s consent

The principal may expressly allow his agent to appoint a sub-agent. His consent may also be
implied from the conduct of the parties. The principal may ratify his agent’s unauthorized
delegation.

A person who is appointed by the agent and to whom the principal’s work is delegated is
known as “sub-agent”. Section 191 defines “sub-agent” as “ a person appointed by and acting
under the control of the original agent in the business of the agency.”

S.191. “ Sub-agent” defined – A “sub-agent” is a person employed by, and acting under the
control of, the original agent in the business of the agency.

In a case before the Supreme Court Union of India v. Mohd Nazim,11

A person had sent certain parcels by VPP to a destination in Pakistan. The articles reached
Pakistan. They were delivered to the addressee and their value was collected. The
Government of Pakistan, having snapped the postal treaty with the Government of India, did
not forward the amount. The Indian Post Office could not pay to the sender. The sender sued
the Government.

Holding the Government not liable, the court said that when two sovereign powers enter into
a postal treaty, neither of them can be described as an agent of the other. Neither can be said
to be employed or acting under the control of the other as required of a sub-agent under
Section 191.

When a sub-agent is appointed, what relationship is constituted between the principal and the
sub-agent and the agent? The answer depends upon whether the sub-agent has been properly
or improperly appointed.

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