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Report No. 68

Chapter 3

The Effect and Construction of Powers of Attorney

Section 2-Principle

3.1. The effect of a power of attorney is dealt with in section 2. The section in its operative part provides that the donee of a power-of-attorney may execute or do any assurance, instrument or thing: in his own came and signature, and an instrument or thing so executed or done shall be as effectual in law as if it had been executed or done "by the donee of the power in the name and with the signature and seal of the donor thereof".

The wording of the section is somewhat unfamiliar and slightly un-intelligible, but what it intends to emphasise is, that though the signature is of the donee, the document is to be read as if signed by the donor. This legal fiction necessarily implies that the document will be binding on the donor. Simply stated, the section provides that the signature of the agent will be deemed to be the signature of the principal. The language of the section has not caused such difficulty in practice, and need not be disturbed on this point.

The section follows section 46 of the Conveyancing Act, 18811 which was in these terms :

"46. Execution under power of attorney :

(1) The donee of a power of attorney may, if he thinks fir. execute or do any assurance, instrument, or thing in and with his own name and signature and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done shall be as effectual in law, to all intents, as if it had been executed or done by the donee of the power in the name and with the signature and seal of the donor thereof.

(2) This section applies to powers of attorney created by instruments executed either before or after the commence meat of this Act."

This section of the Conveyancing Act was, so far as England is concerned, replaced by section 123 of the Law of Property Act, 19252 which was in the same terms.

1. Conveyancing Act. 1881 (44 & 45 Vic. e. 41) (repealed and re-placed),

2. Law of Property Act, 1925 (15 & 16 Geo. 5, Ch. 20).



The Powers of Attorney Act, 1882 Back




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