1456. The basis of an authority to act as agent is sometimes
absolute. That is to say, it is not dependent upon a condition, or made with
reference to any particular time or subject to any limitations.
The basis of an authority to act as agent is sometimes conditional.
Example:- A informs B that he has made him his agent to sell his horse in the
event of a certain merchant coming to his place, B agrees. The authority to act
as agent is concluded subject to the merchant coming to such place. If he comes,
the agent can sell the horse, but not otherwise.
The basis of an authority to act as agent is sometimes subject to certain time.
Example :- A informs B that he has made him his agent to sell his animals in the
month of April and B accepts. B can sell the animals as agent when the month of
April comes or thereafter, but not before.
The basis of an authority to act as agent is sometimes subject to a limitation.
Example:- A informs B that he has appointed him his agent to sell his watch for
a thousand piastres. B's authority to act as agent is subject to the limitation
that he may not sell for less than a thousand piastres.
CHAPTER II. CONDITIONS ATTACHING TO AGENCY
1457. The principal must be able to perform the act which is the subject matter of the
agency. Consequently, any authority to act as agent conferred by a minor of
imperfect understanding, or a lunatic, is invalid. A minor of perfect
understanding may not confer any power to act as agent upon any other person in
such matters as bestowal of property by way of gift, or giving alms, which can
only be to the disadvantage of the minor, even though his tutor authorises him
to do so. A minor may, however, authorise some other person to act as agent for
him for the purpose of accepting such things as gifts or alms, which can only be
for his advantage even without the permission of his tutor. As regards
dispositions of property which may either be to his advantage or disadvantage
such as sale and purchase, the minor may authorise some other person to act as
agent, if he has been authorised to engage in trade. If not, the authorisation
to act as agent in dependent upon ratification by the tutor.
1458. The agent must be of sound mind and perfect understanding.
He need not have arrived at the age of puberty. Consequently, a minor of perfect
understanding, may become an agent. The rights under the contract, however, do
not effect him, but his principal.
1459.Any person may appoint any other person his agent to perform
any act which he can himself perform, or to fulfil any obligation, or to acquire
any right, in respect to any transaction to which he himself is liable or
entitled.
Example:- A may validly appoint B his agent for buying and
selling, giving and taking on hire, giving and taking on pledge, giving and
receiving for safe keeping, bestowing and receiving by way of gift, settlement,
discharge, admission, instituting an action at law, claiming a right of pre-
emption, partition, paying and receiving payment of debts and taking delivery of
property. The subject matter of the agency, however, must be known.
CHAPTER III. ESSENTIAL ELEMENTS OF AGENCY.
SECTION I. GENERAL.
1560. A contract concluded by an agent must be made by reference
to his principal in the case of gift, loan for use, pledge, deposit for safe
keeping, lending money, partnership, partnership of capital and labour, and
settlement by way of denial. If the matter is not so referred to the principal,
it is invalid.
1461. A contract concluded by an agent need not be made by
reference to his principal in the case of sale and purchase, hire, and
settlement by way of admission. Such contract is valid if merely concluded by
the agent alone, ownership passes to the principal alone. Should the contract be
made without reference to the principal, however, the rights under the contract
belong to the contracting party, that is to say, the agent. if the contract is
made with reference to the principal, the rights under the contract belong to
the principal. In that case, the position of the agent is similar to that of a
messenger. Examples:-
(1). An agent for sale concludes the contract without reference to his
principal, but merely with reference to himself, and, upon selling the property
of his principal, must deliver the property sold to the purchaser. He may claim
and receive the price from the purchaser. Should any person appear who is
entitled to the property purchased, obtain judgement therefor, and seize the
same, the purchaser may have recourse against the agent for sale, that is to
say, may claim the price which he has given to him.
(2). An agent for purchase concludes a contract in this way without reference to
his principal. He may take delivery of the property purchased, and, even though
he has not received the price of the property purchased from his principal, he
is obliged to pay it to the vendor from his own property. Should some defect of
long standing appear in the property purchased the agent has the right of
bringing an action to secure its return.
(3). An agent concludes a contract with reference to his principal, as where he
states that he has sold or thought an agent for A. In this case, the contractual
rights referred to above belong to the principal, the position of the agent
being similar to that of a messenger.
1462. In the case of messengership, the rights under the contract
belong to the person sending the messenger. The messenger is in no way concerned
therewith.
1463. Property in the possession of an agent which he has
received in his capacity as agent for sale, or purchase, or paying or receiving
payment of debt, or receiving any specific property, is considered to be
property deposited with him for safe keeping. If it is destroyed without fault
or negligence, the loss need not be made good. Property in the possession of a
messenger in virtue of his duties as messenger is also considered to be property
deposited for safe keeping.
1464. If a debtor sends the sum of money he is owing to his
creditor and it is destroyed while in the possession of the messenger before
being received by the creditor, the debtor must bear the loss if the messenger
is his. If the messenger is the creditor's, however, it is the creditor's
property which is destroyed and the debtor is free from the debt.
1465. If any person appoints two persons simultaneously to be his
agent, one of them alone may act as agent. One of them, however, may act alone
in actions at law, or for the return of things deposited for safe keeping, or
for paying a debt. But if one person has been appointed agent for any particular
matter and the other has also been directly appointed agent for the same matter,
either of them may act as agent.
1466. A person who has been appointed agent for any particular
matter may not appoint any other person as agent. Nevertheless, if his principal
has authorised him to do so, or to act as he thinks fit, the agent can appoint
some other person as agent. The person whom the agent authorises to act as agent
in this way becomes the agent of the principal, and not the agent of the agent.
Thus, if the first agent is removed or dies, the second agent remains as
agent.
1467. If upon the appointment of the agent, it has been agreed
that a salary shall be paid to him, the agent is entitled to such salary upon
fulfilling the terms of the agency. if no stipulation has been made for payment,
and the agent is not one of those persons who work for a wage, his services are
free, and he cannot demand payment.
SECTION II. AGENCY FOR PURCHASE.
1468. In accordance with the terms of the last paragraph of Article 1459, the subject matter of the agency
must be sufficiently well known to enable it to be carried out. Thus, the
principal must state the nature of the thing to be purchased. If there are
various sorts of things of that nature, it is not enough merely to state the
nature of such thing, but the particular sort or price of such thing must be
mentioned. If the nature of the thing to be bought is not stated, or if it is
stated, and there are various sorts of that nature and the particular sort or
the price thereof is not mentioned, the agency is invalid, unless the authority
to act as agent is of a general nature.
Example:- A appoints B his agent
to purchase a horse. The appointment is valid. A appoints B his agent to
purchase cloth for making into clothes. A must state the nature thereof, that is
to say, whether he wants striped cloth or cloth of any other nature. He must
also state the sort of cloth he wants, such as Damascus or Indian cloth, or
state the price thereof, such as so many piastres for the roll. If the nature is
not stated, as where the principal merely asks for the purchase of a piece of
cloth, or where, for example, he asks for the purchase of striped cloth without
stating the sort or price thereof, the appointment as agent is invalid. But if
the principal instructs the agent to buy a roll of cloth to be made into clothes
or some striped cloth of whatever nature or sort the agent may think fit, the
agency is general and the agent may purchase whatever nature or sort he
chooses.
1469. The nature of a thing is changed with any change in the
substance of such thing, or the object for which it was intended, or the
manufacture thereof.
Example:- Cotton cloth and linen cloth are of
different nature, since the substance from which they are made is different. The
wool and skin of a sheep are of a different nature since the object for which
they are used is different, the skin being used to make bags, and the wool to
make thread to weave carpets, two totally different things. Sharkot felt differs
from shak felt, although both are made from wool, since there is a difference in
their manufacture.
1470. If the agent acts in contravention of his instructions as
to the nature of the thing to be purchased, that is to say, if the principal
tells the agent to purchase something of a certain nature, and he buys the
property of of some other nature, the principal is not bound thereby, however
much more advantageous the thing may be which the agent has bought. That is to
say, the agent is considered to have bought the property for himself and not for
his principal.
1471. If the principal instructs the agent to purchase a ram, and
he buys a sheep, the principal is not bound thereby, and the sheep belongs to
the agent.
1472. If the principal instructs the agent to purchase a certain
piece of land, and buildings are erected on such land, the agent cannot
thereafter purchase such land on behalf of his principal. But if he instructs
him to purchase a certain house, and such house is plastered, or another wall is
added thereto, the agent may purchase such house of behalf of his principal.
1473. If the principal instructs the agent to purchase milk,
without indicating what milk, the principal shall be understood to mean the milk
which it is the custom to use in the district.
1474. If the principal instructs the agent to buy rice, the agent
may purchase any sort of rice sold in the market.
1475. If any person intends to appoint some other person as agent
to buy a house, he must state the district in which it is situated and the price
thereof. If he does not do so, the agency is invalid.
1476. If any person intends to appoint some other person his
agent to purchase a pearl or a red ruby, he must state the price he is prepared
to pay. If he fails to do so, the agency is invalid.
1477. In the case of things estimated by quantity, the quantity
or price of the subject matter of the agency must be stated.
Example:- A appoints B his agent to buy corn. A must state the number of Kiles, or the price
thereof, by stating the amount of money to be expended on the corn. If he fails
to do so, the agency is invalid.
1478. The subject matter of the agency need not be described.
Example:- It need not be stated whether of the best quality or of medium
quality, or of the lowest quality.
The description of the subject matter of the agency must, however, correspond to
the position of the principal.
Example:- A, who lets horses on hire, appoints B his agent to buy a horse. The
agent may not purchase an Arab horse at twenty thousands piastres. If he does
so, the principal is not bound thereby. That is to say, the horse is not bought
for the principal, but becomes the property of the agent only.
1479. If the appointment as agent is made subject to a
limitation, no act may be performed by the agent in contravention thereof. If he
does so, the principal is not bound, and any property purchased belongs to the
agent. But if the agent acts in contravention of his appointment in a way more
advantageous to the principal, such act is not considered to amount to
contravention. Examples:-
(1). A instructs his agent, B, to buy a certain house for ten thousand piastres.
If B exceeds this price, A is not bound and the house becomes B's property. If B
buys it for less than ten thousand piastres, it is considered to be bought for
the principal.
(2). A instructs B, his agent, to buy on credit. B buys and pays cash. The
property belongs to the agent. But if A instructs B to buy for ready money and
the agent buys on credit, the property is considered to be bought for the
principal.
1480. If a person buys half the thing he is appointed agent to
purchase, such purchase is not binding upon the principal if such thing will be
injured by being divided. If not, he is bound thereby.
Example:- A instructs B, his agent, to buy a roll of cloth. B buys half a roll. A is not
bound thereby, and the cloth becomes the property of the agent. But if A tells B
to buy six Kiles of corn, and B buys three kiles, the corn is presumed to have
been bought for the principal.
1481. If the principal instructs his agent to buy him cloth to
make a cloak, there is not sufficient cloth in that purchased by the agent to
make the cloak, the principal is not bound thereby and the cloth belongs to the
agent.
1482. If the price of a thing is not mentioned, the person who is
appointed agent to purchase may buy such thing for the estimated value thereof,
or at a price subject to minor misrepresentation. Things the price and value of
which are fixed, however, such as meat and bread, may not be bought at even
subject to minor misrepresentation. If the agent buys such things as a result of
flagrant misrepresentation, however, the principal is in no case bound by the
purchase, and the property belongs to the agent.
1483.Purchase outright is understood to be purchase for cash. Thus, if a person
who has been appointed agent for the purchase of anything purchases such thing
by exchanging other property therefor, the principal is not bound thereby, and
such thing belongs to the agent.
1484. If a person appoints some other person his agent to
purchase something which is necessary for some particular season it is
considered to relate to that season.
Example:- A appoints B his agent to
purchase a cloak made of goat hair in the spring season. B is considered to be
appointed agent to purchase such a cloak for use in the summer season. If he
buys after the season has passed or buys in the spring of next year, the
principal is not bound by such purchase, and the cloak becomes the property of
the agent.
1485. A person who is appointed agent to buy some specified thing cannot
purchase such thing for himself. If when buying such thing he states that he has
purchased it for himself, it nevertheless becomes the property of the principal.
Nevertheless, if he buys such thing for a higher price than that fixed by the
principal, or, if no price has been fixed and he buys as a result of flagrant
misrepresentation, the property in that case belongs to the agent. Again, if the
principal is present and the agent states that he has bought such thing for
himself,the property belongs to the agent.
1486. If a person appoints some other person his agent to buy a
horse,the horse becomes the property of his principal if at the time he made the
purchase he stated that he has bought on behalf of his principal. If he states
that he has bought for himself, the horse becomes his property. If he merely
states that he has purchased the horse without stating, and later states that he
has purchased on behalf of his principal, such statement is effective if made
before the horse is destroyed or some defect appears. But if makes such
statement after the horse is destroyed or after some defect appears, such
statement is of no effect.
1487. If two persons separately appoint a person as agent to
purchase a certain thing, the property belongs to the person whom the agent
intended to effect the purchase.
1488. If an agent for purchase sells his own property to his
principal such sale is invalid.
1489. If the agent becomes aware of a defect in the property
purchased before delivering it to his principal, he may himself reject it. He
may not reject it after delivery, however, without an order and authority from
his principal to do so.
1490. If the agent buys property to be paid for at some future
date, the same condition as to payment affects the principal, and the agent may
not ask the principal to make payment forthwith. If the agent, however,
purchases by an immediate cash payment, and the vendor thereafter adjourns the
date for payment, the agent can demand payment forthwith from the principal.
1491. If an agent for purchase pays the price from his own
property and takes delivery of property purchased, he can exercise a right of
recourse against his principal, that is to say, he can recover from him the
price which he has paid. If he has not already paid the price which he has paid.
If he has not already paid the price of the property purchased to the vendor, he
may claim the price from his principal, and may exercise a right of retention
over the property until such time as the principal has paid.
1492. If the property purchased by an agent for purchase is
accidentally destroyed or lost while in the possession of the agent, the loss
must be borne by the principal, and no reduction is made in the price if the
agent has exercised a right of retention over such property in order to obtain
payment of the price, however, and such property is destroyed or lost, the price
must be paid by the agent.
1493. An agent for purchase may not rescind a contract of sale
without the permission of his principal.
SECTION III. AGENCY FOR SALE.
1494. An agent who has been
granted an absolute power to conclude contracts of sale may sell his principal's
property at any price he thinks fit, whether great or small.
1495. If the principal has fixed the price, that is to say, if he
has instructed the agent to sell for so much, the agent may not sell for less
than such price. If he does so, the sale is concluded subject to ratification by
the principal. If the agent sells it on his own initiative for a price lower
than that mentioned, and delivers the property to the purchaser, the principal
may call upon him to make good the loss.
1496. If an agent for sale purchases his principal,s property for
himself, such purchase is invalid.
1497. An agent for sale may not sell the property of his
principal to persons whose evidence given on his behalf is invalid. If he sells
for than the value of the property, however, the sale is valid. If the agent is
appointed in virtue of a general power, the principal instructing him to sell to
whomsoever he may think fit, the agent may validly sell to such persons for an
estimated price.
1498. If an agent has been granted an absolute power of sale, he
may sell his principal's property for cash or on credit for a period recognised
by merchants in respect to such property. He may not, however, sell on credit
for a longer period than that recognised by custom. If the agent has been
appointed, either expressly or by implication, to sell for cash, he may not sell
on credit.
Example :- A principal instructs his agent to sell certain
property for cash or to sell certain property for cash or to sell certain
property and pay a debt of his with the proceeds. The agent may not sell on
credit.
1499. If injury is caused by the separation of a thing, the agent
cannot sell half thereof.
1500. An agent may take a pledge or a surety in respect to the
price of property which he has sold on credit. If the pledge is destroyed or the
surety becomes bankrupt, the agent is not liable to make good the loss.
1501. If a principal instructs his agent to take a pledge or a surety in respect to
property sold, the agent may not sell such property without taking a pledge or a
surety.
1502. If an agent for sale fails to obtain the price of the
property sold from the purchaser, he cannot be forced to pay the price thereof
to his principal out of his own property.
1503. The price of the thing sold may validly be received both by
the agent and the principal.
1504. If the agent is working without remuneration, he is not
obliged to obtain payment of the price of the property sold. If he does not do
so of his own accord, however, he must appoint his principal to be his agent to
obtain payment of the price. But persons such as brokers and auctioneers who are
appointed as agents for sale subject to remuneration, are obliged to obtain
payment of the price of the thing sold.
1505. An agent for sale may rescind the sale on his own
initiative. The rescission, however, is not executory as regards the principal,
and the agent must pay the price thereof to the principal.
SECTION IV. INSTRUCTIONS GIVEN BY ONE PERSON TO ANOTHER.
1506. If one person gives an instruction to another person to pay a sum of
money owing by him to some third person, or to the State, and such person pays
such sum of money from his own property, he may thereafter exercise a right of
recourse against the person who gave the instruction, whether such right of
recourse has been agreed upon or not. That is to say, whether he uses
expressions which imply a right of recourse, as where he instructs a person to
pay a sum of money owing by him and thereafter to recover such sum from him, or
where he instructs him to pay and recover from him later, or whether he merely
instructs him to pay a sum of money owing by him
1507. If one person instructs another to pay a sum of money owing
by him from his own property in base coin and he pays in sound coin, base coin
only can be recovered from the person who gave the instruction. If such person
is instructed to pay in sound coin, but pays the debt in base coin, he can
recover base coin only. If a person who has been instructed by some other person
to pay a sum of money owing by him, sells his own property to the creditor and
pays such person's debt therefrom, the person who pays the debt may recover the
amount thereof from the person who gave the instruction, whatever that amount
may be . If he sells his own property to the creditor for an amount greater than
the value thereof the person who gave the instruction for the debt to be paid
cannot deduct the balance from the debt.
1508. If any person instruct any other person to incur
expenditure for himself or his relations and family, such person may recover a
reasonable amount of expenses from the person who gave the instruction whether
the latter has expressly authorised him to do so or not. Again, one person
instructs another to have his house repaired and the latter does so. He may
recover a reasonable sum from such person, even though no agreement has been
made to that effect.
1509. If any person instructs any other person to make a loan of
money, or to give him alms, stating that he will repay him later, and such
person does so, He may recover such money from the person who gave the
instruction. If the person giving the instruction, however, makes no stipulation
as to recourse as by stating that he will give him money, or that the person
paying the money may later recover it from him, but merely gives an instruction
to pay, such person has no right of recourse. Nevertheless, if it is customary
in such matters to have recourse against the person giving the instruction, as
where the person to whom the instruction is given is a member of the family of
the person giving the instruction, or is his partner, such person may exercise a
right of recourse, even though no stipulation has been made therefor. ( See
Article 36).
1510. Any instruction given by any particular person is only
effective in regard to that person's property.
Example:- A instructs B to
throw certain property into the sea. B does so knowing that the property in
question belongs to some one else. The owner of the property can call upon B to
make good the loss. The person who gave the instruction is not liable, unless he
used compulsion.
1511. If any person instruct any other person to pay a debt owing
to him, and amounting to a certain sum, from his own property and such person
promises to do so, but fails to pay the sum in question, such person cannot be
made to pay the debt by reason merely of having promised to do so.
1512. If the person to whom an instruction to pay a debt is given
owes money to the person giving the instruction, or has money belonging to the
latter deposited with him for safe keeping, such person is bound to pay the
debt. But if the person giving the instruction orders certain of his property to
be sold and the debt to be paid therefrom, the person to whom the instruction is
given is not obliged to pay such debt even though he is unsalaried agent. If he
is salaried agent, however, he is obliged to sell such property and pay the debt
of the person who gave the instruction from the proceeds.
1513. If any person gives a sum of money to some other person
instructing him to pay it to a creditor of his, the other creditors of the
person giving the instruction have no right to claim a share therein and the
person to whom the instruction has been given may only pay the money to the
creditor mentioned in the instruction.
1514. If any person gives any other person a sum from which to
pay a debt owing to some third person, and it is known that the person to whom
the money belongs has died before such money has been made over to the creditor,
the money is question must be paid to the estate of the person to whom the money
belonged, and the creditor must have recourse against the estate.
1515. If any person gives a sum of money to pay to his creditor
with instructions that the sum in question shall not be handed over unless an
acknowledgement is endorsed on the bill or a receipt given therefor, and such
person hands over the money without obtaining any acknowledgement or receipt,
and the creditor later denies having received the money, and the debtor, being
unable to prove payment, is obliged to pay the debt a second time, the latter
may call upon the person to whom he gave the money to make good the loss.
SECTION V. AGENCY FOR LITIGATION.
1516. Both plaintiff and defendant may authorise any person they may wish to act as their agent for
litigation. Neither party need obtain the consent of the other.
1517. Any admission made against his client by the person
authorised to act as his agent for litigation is valid if made in Court. If made
out of Court,it is invalid and the agent may be dismissed.
1518. Any person who appoints another his agent for litigation
may validly forbid him to make any admission against him, in which case an
admission made by the agent against his client is invalid. ( See last paragraph
of Article 1456). Again, if the agent makes an admission in Court, and is not
authorised to do so, he shall be dismissed.
1519. An agency for litigation does not include an agency to take
delivery. Consequently, if an advocate is not an agent to take delivery, he
cannot act as agent to take delivery of the subject matter of the judgement.
1520. An agency to receive does not include an agency for
litigation.
SECTION VI. DISMISSAL OF AGENTS.
1521. The principal may dismiss his agent from his agency. He may not do so, however, if the rights of
third parties are affected. Thus, a person owing a sum of money gives his
property as a pledge for the debt. At the time the contract of pledge was
concluded, or at some later date, he appoints a person as his agent to sell the
pledge when the debt falls due. The principal may not dismiss the agent without
the consent of the pledgee. Similarly, at the request of the plaintiff, a
defendant appoints a person his agent for litigation. He cannot dismiss him in
the absence of the plaintiff.
1522. The agent himself may relinquish the agency, but, as stated
above, he may not do so if the rights of third persons are affected, but must
perform his duties.
1523. Upon a principal dismissing an agent from his agency, the
dismissal does not becomes effective until information thereof has been given to
the agent, and any disposition of property made by him up to that time is
valid.
1524.Upon the agent giving up the agency, he must inform his
principal thereof, and the agent is responsible for performing his duties as
agent until the principal has been so informed.
1525. The principal may dismiss a person appointed as agent to
receive a debt during the absence of the debtor. If the principal appointed him
as agent in the presence of the debtor. Thus, if the debtor pays the debt to him
while unaware of his dismissal, he is free from liability for the debt.
1526. The agency terminates upon the completion of the duties for
which the agent was appointed, and, naturally, is discharged therefrom.
1527. The agent is discharged upon the death of the principal. He
is not discharged, however, if the rights of any third party are affected
thereby. ( See Article 760.)
1528. Upon the death of the principal, any agent appointed by the
agent is discharged from the agency. (See Article 1466.)
1529. Agency is not transmissible by way of inheritance. That is
to say, if the agent dies, the validity of the agency expires and consequently
the heir of the agent does not stand in his stead.
1530. If the principal or the agent are afflicted with madness,
the agency is null and void.