Section 190 and 191 of Indian Contract Act 1872: Delegation by Agent and Sub-Agent Defined
Sections 190 and 191 of the Indian Contract Act, 1872 form part of Chapter X on agency. Section 190 states the general rule that an agent who has undertaken to act personally cannot ordinarily delegate that work. Section 191 explains who is a sub-agent.
The Indian Contract Act, 1872 is Central Act No. 9 of 1872. The official text is available through India Code - Indian Contract Act, 1872.
Section 190 - When agent cannot delegate
Statutory rule: An agent cannot lawfully employ another person to perform acts which the agent has expressly or impliedly undertaken to perform personally, unless the ordinary custom of trade permits employment of a sub-agent or the nature of the agency requires a sub-agent to be employed.
Section 190 embodies the principle commonly expressed by the maxim delegatus non potest delegare, meaning that a person to whom authority has been delegated should not further delegate that authority where the agency requires personal performance. The statutory text itself, however, expressly recognizes exceptions.
When can an agent appoint a sub-agent?
- Ordinary custom of trade: Delegation is permissible where the ordinary custom of the relevant trade allows a sub-agent to be employed.
- Nature of the agency: Delegation is also permissible where the nature of the agency makes employment of a sub-agent necessary.
- Personal undertaking: If the agent expressly or impliedly undertook to perform the act personally and neither statutory exception applies, the agent cannot lawfully delegate that act.
The question therefore depends not merely on whether another person was engaged, but also on the terms of the agency, the nature of the work, and any applicable trade custom.
Section 191 - Sub-agent defined
Definition: A sub-agent is a person employed by, and acting under the control of, the original agent in the business of the agency.
The essential feature of a sub-agent under Section 191 is that the person is engaged by the original agent and acts under that agent's control in carrying out the agency business. This distinguishes a sub-agent from a person who may, in appropriate circumstances, be directly appointed as an agent of the principal.
Difference between an agent and a sub-agent
An agent derives authority from the principal. A sub-agent, as defined by Section 191, is employed by the original agent and works under the original agent's control. The legal consequences of a properly appointed sub-agent are dealt with in Section 192, while Section 193 deals with a sub-agent appointed without authority.
Why Sections 190 and 191 are important
These provisions determine whether an agent may entrust agency work to another person and whether that person falls within the statutory definition of a sub-agent. They should be read with the surrounding provisions on an agent's authority, especially Sections 186 and 187 on express and implied authority and Sections 188 and 189 on the extent of authority and emergency powers.
In brief: Section 190 creates the general restriction on delegation by an agent, subject to trade custom and the nature of the agency. Section 191 defines a sub-agent by reference to employment by and control of the original agent.
This page provides a general explanation of the statutory provisions. For the authoritative text, refer to the official India Code version of the Indian Contract Act, 1872.