Explain what agency of necessity is and how it may arise.
This paper will explain what agency of necessity is and how this agency arises. Agency is the work done by an agent. An agent is a person that has a contractual obligation with a principal to bind the principal to a third party without the agent being party to the contract. The contract then becomes one between the principal and the third party.
In lay terms, imagine parties A, B and C. Party A gets into a contract with party B whereby B has been given powers by A to find C and get C to enter into a contract with A without B owing any obligations to A and C in the resulting contract. An agency can be created by anyone and without any formalities. Whatever the agency arising, an agency can be created by parties expressly deciding to enter into a contract or by law. In the latter kind, the parties need not even talk or agree on the contract but circumstances arising can make them be contractually bound under the law. In the former kind, a contract with terms is drafted and signatures appended or it can be verbal but two or more parties meet and discuss the contractual terms of the agency.
Among the circumstances that create agency under the law is one that of necessity. The law assumes that a person can act on behalf of another in an emergency with the sole purpose of commercially protecting the interests of another. In such situations, the law awards the person found at the scene of emergence the authority to enter into a contract on behalf of another, even without the knowledge of the other. This is what is called the agency of necessity.
An example of a scene of emergence can be whereby a transporter engaged to transport tomatoes from Mkushi farming block to Kasumbelesa experiences a major break down in Ndola town. The emergence shall be that the tomatoes will get rotten if they stay on the truck waiting for repairs. The transporter can be awarded an agency of necessity under the law if he engaged another truck to get the tomatoes to kasumbelesa in time to be sold or if he went into a sale contract with Shoprite, Ndola to sell off the tomatoes.
The law requires that certain conditions be met for one to claim an award of agency of necessity.
The law requires that a real commercial emergency occur for one to claim agency of necessity. The law will not recognize situations that a person in charge of the goods at the time perceive or assumes to be an emergency but will recognize a situation whereby even the owner of the goods if found in such a situation will consider it an emergency. So the situation to qualify as an emergency should be genuine in the public eye. The case of The Great North Railway v Swarfield illustrates what an emergency is. In the case, the defendant bought a horse from one town and sent it to his address which was in another town. The address was just his name and the town where the horse was going. Upon the horse arriving at its destination, the defendant was not there to receive and his actual address was not known. The carrier, it being the plaintiff, left the horse in the care of someone who looks after horses. The defendant showed up later and was asked to pay for the stay of the horse by the keeper. He refused. The plaintiff later settled with the keeper and sued the defendant. It was held that an agency of necessity was present as there was an emergency and thus the plaintiff was entitled to recover the amount paid to the horse keeper from the defendants.
It should be noted from the above case that the plaintiff upon delivery of the horse in the town mentioned by the sender could not get locate the sender as he had given an incomplete address. The option left to the plaintiff was either to let the horse loose or to put it in the care of someone. The first option could have meant the defendant losing the horse either through theft...