THE CAPACITY OF AN INFANT TO APPOINT AN AGENT
| Author | P. R. H. Webb |
| Published date | 01 September 1955 |
| Date | 01 September 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00314.x |
THE
CAPACITY
OF
AN
INFANT
TO
APPOINT
AN
AGENT
DR.
Powell in his treatise
on
the
Law
of
Agency
must have
exercised the foresight of a Hebrew prophet when he wrote
“Whether an infant can appoint an agent in other cases cannot
be stated with any certainty,”l for Denning
L.J.
has certainly cast
doubts
on
this question in a passage in his judgment in
Shephurd
v.
Cartwright.2
He says:
“. . .
the appointment by an infant of
an agent
.
.
.
has always been held void.
It
has been the law of
this country for many centuries that an infant cannot appoint
an
agent to act for
him,
neither by means of a power of attorney, nor
by any other means.
If
he purports to appoint an agent, not only
is the appointment itself void, but everthing done by the agent
on
behalf of the infant is also void and incapable of ratification. The
reason for this rule is because an infant has not sufficient discretion
to choose an agent to act for him. He is all too likely to choose
the wrong man; and
so
the law, rather than have any argument
upon the point, declares him to be incapable of choosing an agent
at all.
If
he is to enter into any legal transaction, he must enter
into
it
by himself and not by an agent, and then the law will look
into the transaction and see whether
it
is binding
on
him
or
not.
This distinction-between a transaction entered into by the infant
himself and one entered into by an agent
on
his behalf-is taken in
all the books.
It
is taken by Lord Mansfield
L.C.
himself in the
leading case of
Zouch
v.
Parsons
where he says that the powers
of
attorney given by infants are void; and also all deeds by an infant
which
‘
delegate a mere power and convey
no
interest
’.
The same
distinction is taken by Baron Parke in
Doe
d.
Thomas
v.
Roberts,“
where he said;
‘An
infant cannot appoint an agent
. . .
an agree-
ment by an agent cannot bind an infant.’
”
While
it
is not for one
moment suggested that the power of attorney and the two written
authorities given by the (then) infant plaintiff, Richard Cartwright,
were, on the facts, anything other than void,
it
is respectfully sub-
mitted that the Lord Justice’s statement has some unexpected
results and that certain cases appear not to bear
it
out in all
respects. According to his view we are, apparently, to assume that
both the contract between an infant principal and his purported
agent and any contract between the infant principal and the third
1
At
p.
242.
He
says
“
other
”
because he has adverted
to
the Law of Property
a
[1953]
Ch.
728,
at
p.
755
(reversed
[1955]
A.C.
431,
but without reference
to
3
(1765) 3
Burr.
1794
at
p.
1804.
Act.
8.
129
and to
R.
v.
Longnor
(Inhabitants)
(1833) 4
B.
&
Ad.
647.
this point).
(1847) 16
M.
&
W.
778
at
p.
780.
461
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