Authority and Necessity in the Law of Agency
| Author | Ian Brown |
| Published date | 01 May 1992 |
| Date | 01 May 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00923.x |
Tht
Modern
Lrrw
Review
[Vol.
55
Authority and Necessity in the Law
of
Agency
Ian
Brown"
The rules relating to agency of necessity are culled from
so
many disparate sources
that
it
has proved consistently impossible to forge the law into one coherent body
of doctrine.' The origins of this agency are found
in
the authority of the shipmaster
to act
in
emergencies as agent of the shipowner
in
order to preserve the ship and
her cargo, and the acceptor of a bill of exchange for the honour
of
the drawer who
has an entitlement to be reimbursed by the person for whom he pays. The rules
have been extended to encompass carriers of goods by land faced
with
crises and
also apply, but with less certainty, to other bailees. The deserted wife's right to
pledge her husband's credit for necessaries was, formerly, drawn within agency
of necessity and, currently, agency arising from cohabitation is within this category.
Finally, clinging most precariously to the rules of necessity is the troublesome area
corresponding to the Roman law classification of
negotiorum
gestio.?
This unwieldy
conglomerate has little
in
common, ranging as
it
does from commercial agency
relationships rooted
in
formal contracts between principal and agent, to
negotiorum
gestio
where strangers intervene on behalf of others without even the latters' consent.
It
is often assumed that
it
is an emergency affecting
the principal
which provides
the lowest common denominator of these situations, but even this notion is not
comprehensive as,
in
the deserted wife's agency, the necessity is patently her own,
not that of her principal.
Not surprisingly, agency of necessity remains fragmented and bound loosely by
the practical conditions which render
it
operative,
viz
there must be a necessitous
situation, communication
with
the principal must be impracticable and the agent
must act
bona$de
in
his principal's best interests. Overall, there has been a marked
reluctance to extend the notion of necessity beyond the recognised categories.> It
would thus seem to be a reasonable assumption,
at
least
in
situations where there
is
an explicit pre-existing
agency
relationship,
that this apparently immutable doctrine
would have substantial theoretical foundations.
In
fact, even
within
a contractual
agency the juridical basis of agency of necessity remains indistinct. Unfortunately,
whilst the recent litigation
in
Industrie Chimiche Iralia Centrale and Cerealjin
SA
v
Alexander
G.
Tsavliris
&
Sons
Maritime Co
(The
Choko Star)4
settles a practical
~~
*Senior Lecturer
in
Law and Research Fellow in Commercial Law, Bristol Polytechnic.
I
See Reynolds,
Bowstead
on
Agency
(15th ed, 1985) Art 20;
Fridmun
's
Law
($Agency
(6th ed.
1990)
Ch 7; Powell,
The
Law
ofAgency
(2nd ed, 1961) Ch IX; Stoljar,
The
Law ofAgency
(1961) Ch 7;
Scrutton
on
Charterparties
(19th ed, 1984) Arts 121 -131; Goff and Jones,
The
Law
uf
Restitution
(3rd ed, 1986) Ch
15;
Birks,
An
Introduction
to
the Law
o$Restitution
(1985) pp 193-202; Williston,
'Agency of Necessity' (1944) 22
Can Bar
Rev
492; Treitel. 'Agency
of
Necessity' (1954) 3
Univ
I$
Western Australia
L
Rev
I;
Chorley, 'Liberal Trends
in
Present-Day Commercial Law' (1939)
See especially Dawson,
'Negotiotum
Gestio:
The Altruistic Intermeddler'
(1960)
74
Hurvurd
L
Rev
817;
Birks,
'Negotiorum
Gestio
and the Common Law' 119711
Current
Legal
Problems
110;
McCamus,
'Necessitous Intervention: The Altruistic Intermeddler and the Law
of
Restitution' (19791
1
I
Ottawu
L
Rev
297; Rose, 'Restitution for the Rescuer' (1989)
9
OJLS 167.
See Parke B
in
Hawtayne
v
Bourne
(1841) 7 M
&
W 595. Commenting upon this decision. Lord
Chorley
(supra
n
I,
at p 275) said: 'The green shoots of this promising doctrine were glared upon
with Medusa-like effect by Parke B, archpriest of the legalistic school, and withered.'
[
19891 2 Lloyd's Rep 42;
[
19901
1
Lloyd's Rep 516. For notes
on
7%~
Choko Star.
see Reynolds,
'Agency
of
Necessity'
[
19901
JBL
505:
Munday, 'Salvaging the Law
of
Agency'
[
1991
1
1
LMCLQ
1.
3 MLR 272. 274-278.
2
3
4
414
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