Indian Contract Act • Official Statutory Text & Practice Guide
Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1872
Section 190 of Indian Contract Act: When agent cannot delegate
Official Bare Act Text
Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary
An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of trade a sub-agent may, or, from the nature of the agency, a sub-agent must, be employed.
Statutory Defined Terms in this Section:(Click any term for official legal definition)
Section 190 codifies the fundamental common law maxim delegatus non potest delegare, enacting that an agent cannot lawfully delegate the performance of acts he has undertaken to perform personally, unless authorized by ordinary custom of trade or the inherent nature of the agency.
Rule against Delegation of Personal Trust: Agency is founded upon personal trust and confidence (delectus personae); an agent cannot abdicate his mandate or assign his discretionary duties to another without authority.
First Exception: Ordinary Custom of Trade: Delegation is legally permissible where an established, recognized commercial trade usage or market custom routinely sanctions the employment of sub-agents (e.g., broker employing a sub-broker on a stock exchange).
Second Exception: Necessity from the Nature of Agency: Delegation is lawful where the agency's nature or business scale inherently requires the employment of ministerial sub-agents, clerks, or local specialists to accomplish the task.
Key Landmark Precedents:
De Bussche v. Alt (1878) 8 Ch D 286: The Court of Appeal laid down the foundational rule on delegatus non potest delegare, holding that while personal discretion cannot be delegated, delegation is valid where trade custom, business exigency, or the parties' contemplation authorizes the employment of sub-agents.
Central Bank of India v. Siriguppa Sugars & Chemicals Ltd. (2007) 8 SCC 353: The Supreme Court recognized that an agent or pledgee bank may employ third parties or custodians where commercial practice and the nature of the transaction necessitate specialized oversight.
Kartik Ram v. Emperor AIR 1937 Pat 123: The High Court distinguished between discretionary acts requiring personal judgment (which cannot be delegated) and purely ministerial or mechanical acts (which an agent may lawfully delegate).
Courtroom Practice & Strategic Litigation Guidance:
In contract drafting, explicitly stipulate whether the agent may delegate duties, appoint sub-agents, or engage subcontractors. When attacking an unauthorized agreement executed by a sub-delegate, invoke Section 190 and De Bussche v. Alt, demonstrating that the power was discretionary and personal to the original agent, rendering the sub-agent's action completely unauthorized and non-binding on the principal.
Legal Commentary & Landmark Judgments: Section 190
Section 190 codifies the fundamental common law maxim delegatus non potest delegare, enacting that an agent cannot lawfully delegate the performance of acts he has undertaken to perform personally, unless authorized by ordinary custom of trade or the inherent nature of the agency.
In contract drafting, explicitly stipulate whether the agent may delegate duties, appoint sub-agents, or engage subcontractors. When attacking an unauthorized agreement executed by a sub-delegate, invoke Section 190 and De Bussche v. Alt, demonstrating that the power was discretionary and personal to the original agent, rendering the sub-agent's action completely unauthorized and non-binding on the principal.