Authority and Necessity in the Law of Agency

Abstract

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 classifilcation of negotiorum gestio.2 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 oiEten assurhed 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 bonafide in his principal's best interests. Overall, there has been a marked reluctance to extend the notion of necessity beyond the recognised categories.3 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 Italia Centrale and Cerealfin SA v Alexander G. Tsavliris & Sons Maritime Co (The Choko Star)4 settles a practical