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Article Published in the Express Magazine Dated
January 20, 2002
General Attorney : Rajiv K. Luthra
I am a shopkeeper and I want to open a branch
of my shop in another area of the town. This shop
will be run by an agent on my behalf. Now I am
worried on whether I will be bound by all the
deals done by the agent, even if they are not done
according to my instructions.
S. Gupta, New Delhi
The relation between a principal and his agent is
governed by the provisions of the Indian Contract
Act, 1872 (the “Act”). As per Section 211 an agent
is bound to conduct the business of his principal
according to the directions given by the
principal, or, in the absence of any such
directions, according to the custom which prevails
in doing the same kind of business. When the agent
acts otherwise, he must make good to his principal
any loss, and, if any profit accrues, he must
account for it. Any departure from the
instructions or the custom the agent makes at his
own risk. Hence, a principal is not bound by the
unauthorized acts of his agent but he may be bound
where the instruction is substantially pursued.
According to Section 227 of the Act, when an agent
does more than he is authorised to do, and when
the part of what he does, which is within his
authority, can be separated from the part which is
beyond his authority, so much only of what the
agent does within his authority is binding as
between him and his principal. But as per Section
228 of the Act, the principal is not bound to
recognise the transaction, where an agent does
more than he is authorised to do, and what he does
beyond the scope of his authority cannot be
separated from that which is within his authority.
A principal may have certain rights against his
agent who fails in his duty. He may try to recover
damages for want of skill and care and for
disregard of the terms of agency, to obtain an
account and payment of secret and illicit profits
which have come to the hands of the agent acting
on his own account, and to resist the agent’s
claim for commission and indemnity by showing that
the agent acted as a principal. If an agent acts
on his own account without first obtaining the
principal’s consent and acquainting the principal
with all material circumstances which have come to
his own knowledge on the subject, the principal
may repudiate the transaction if any material fact
has been dishonestly concealed from the principal
by the agent, or that the dealings of the agent
have been disadvantageous to the principal. These
are some of the provisions relevant to the query.
However, a specific problem will have to be dealt
within the light of it´s own peculiar facts and
circumstances.
My sister is 16 years old. I recently found out
that she had a physical relationship with our
25-year-old neighbour. There was no force involved
as she consented to this relation. I do not want
to let him get away with it. Can I go to the
police despite the fact she consented?
P. P., Mumbai
Under Section 375 of the Indian Penal Code, a man
is said to commit rape, if he has sexual
intercourse with a woman with or without her
consent when she is under 16 years of age. Thus,
if on the date of the incident when your sister
had a physical relationship with your neighbour,
your sister was under 16 years of age, you can
file a report against your neighbour for rape. In
that case the offence of rape can be made out, as
your sister’s consent is immaterial. The law
believes that a minor is incapable of making sound
decisions. So in spite of the fact that your
sister had consented to the sexual act, the person
can still be charged with rape, if the other
requirements of the section are fulfilled.
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