Report No. 13
138. Section 187.-
Section 187 not only defines 'implied authority' but also attempts to lay down what would be the nature of the circumstances from which an authority may be implied. The statement as regards the nature of circumstances is not and does not purport to be exhaustive. It omits to specify equally important cases in which authority may be implied and does not fully make provision for the circumstances which can lead to an inference in favour of 'authority'.
For example, this section does not convey the idea of agency of necessity. Bowstead's observation namely, that 'agency can be implied from the conduct or situation of the parties or from the necessity of the case, is more comprehensive. We are of the opinion that this section needs alteration so that 'situation of the parties and the necessity of the case,1 may also be specified as circumstances from which an authority may be implied, making it clear that some antecedent relationship must exist between the parties to justify an implication of agency.
1. Bowstead; Op. Cit., 11th Edn., p. 5.
139. Section 189 provides for a case where there is an already existing relationship of principal and agent and the authority of the agent is implied from the existence of a necessity. The section is not concerned with the case where relationship of principal and agent is itself created by reason of the existence of necessity. The English Law on the subject may be stated as follows:
"Agency of necessity arises wherever a duty is imposed upon a person to act on behalf of another apart from contract, and in circumstances of emergency, in order to prevent irreparable injury. It may also arise where a person carries out the legal or moral duties of another in the absence or default of that other, or acts in his interest to preserve his property from destruction. The doctrine of agency of necessity has a limited application and, apart from cases where a person carries out the legal or moral duty of another, is probably confined to circumstances in which there is a contractual relationship of some kind, express or implied, in existence already".1
1. Halsbury, 3rd Edn., Vol. 157.
An example of such contractual relationship is that of a carrier. The result of the modification we have suggested will be that apart from the case where there is an existing relationship of principal and agent, the law will specifically provide for the creation of such agency from the very existence of emergency or necessity.
140. A new section may be added after section 187 providing for 'acts which may be done by means of an agent'. In English law, an agent may be appointed for the purpose of entering into any contract for doing any act on behalf of the principal which the principal might himself make or do, except for the purpose of exercising a power or authority or performing a duty imposed on the principal personally, the exercise or performance of which requires discretion or skill or for the purpose of doing an act which the principal is required to do by or pursuant to a statute in his own person. We think that the omission in our Contract Act of a provision as to the acts which may be done by means of an agent should be supplied.1
1. Vide section 187A, App I.
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