Delegatus potestas not potest delegare

Delegatus potestas not potest delegare

Literal meaning

A delegate cannot further delegate.

Origin

The maxim “Delegatus potestas non potest delegare” derives its origin from the Catholic Canon Law but it was first put into words by John Willis in Canadian Bar Review in 1943. The principle has gained much recognition in United States, United Kingdom and India.

Explanation

The maxim which is also stated as Delegata potestas non potest delegari, relates to the principal and agent. It simply means that an agent cannot further delegate the work assigned to him by the principal. This principle is also explained through another maxim- “vicarious non habet vicarium” which means one agent cannot lawfully appoint another to perform the duties of his agency. It involves the application of rule on basis of trust or confidence.

The objective behind this principle is that a principal assigns his agent to do an act with the belief that he will do it by himself as he possess the required ability and integrity. The principal puts his trust in the agent. Thus, the agent must not sub-delegate the work, until such power is given to him in express terms.

Section 190 of Indian Contract Act, 1872 is based on this principle only. It states that a delegate cannot further delegate execution of those duties that are entrusted to him due to his integrity and competence.

The principle is applied to Constitutional law and administrative law.

Illustration

‘A’ is a broker who was assigned the work of selling goods, by ‘B’ (principal). ‘A’ cannot ask another broker to sell the goods without express permission from the principal-‘B’.

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Case Reference

Putta Kamairayya v. State of Karnataka

The Deputy Commissioner was assigned the job of execution of a decree under Section 54 of CPC. He delegated the work to Gazetted Assistant Collector who further delegated the job to Tehsildar. Section 54 CPC allows the delegation only once. The Supreme Court applied the maxim of delegatus non potest delegare and observed that the double delegation done in the case was wrong and thus the execution of decree by the Tehsildar was void.

In re Delhi Laws Act, 1950

The issue raised in the case was that Parliament being the agent of people cannot delegate its legislative functions to other authority. The Court clarified that the maxim is applied to fiduciary relations and Parliament is neither an agent of electorates nor trustee of any of its constituents. So the maxim doesn’t apply to legislative powers.

Union of India v. Amar Singh

It was observed that a banker authorised to let out a house and collect rents may entrust his work to an estate agent.

Mason v. Joseph

It was held that an agent may delegate his act which are purely ministerial in nature. Eg. Authority to sign.

Also Read: Per Incuriam – Meaning, Origin, Explanation and Case Laws

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