Delegatus non potest delegare

While for some the posture may be rank with discourtesy, dealing with subalterns elicits for me a conditioned negative response; namely, “Principals only!” Years as a seasoned legal practitioner have alerted me to the potential pitfalls of agency relations, the most common abuse of which is the purported extension of authority to, or appropriation of it by, underlings. Aside from the offence of violating the principle of law that “delegatus non potest delegare” – he who is delegated may not delegate further – the practical concern is that sub-agents are unreliable both in point of law and as a general commercial proscription.

The principle was first articulated in Canada in 1943, in an article in the Canadian Bar Review by John Willis. While it is acknowledged as “the seminal articulation of the law governing the subdelegation of statutory and discretionary powers” and it is still often cited, it has not achieved the rigid standing that was originally intended. The maxim has had some success as an operating principle in the restriction of delegation of legislative and judicial powers, but the demands of modern governmental regulatory practices have inhibited its application in the delegation of administrative powers.

What contaminates the highly restricted use of an agency relationship is the presumption of unqualified persons to usurp their authority putatively on behalf of the Principal. More often than not the ultimate purpose is to advance their own narrow engagement rather than to fulfill the restricted purposes of the Principal. This distortion of lawfulness is compounded by the sub-delegation which the quack interloper unlawfully conscripts (usually in total and blissful ignorance of the violation). As unnecessarily esoteric as this matter may be cast, it is nonetheless one of those elemental principles of law which underpin its guarantee of rights and obligations. The protection of the substance of contractual relationships is a commercial imperative since otherwise all is reduced to power politics and jungle tactics generally.  Agency relationships are not casual niceties.

The recognition of the authority of a strict interpretation of agency goes a long way to defeat the meddling of incompetents, a blessing for both the Principal and the parties with whom he or she deals whether directly or indirectly. Understanding the refinement of the analysis, while admittedly a ponderous exercise for the uninitiated, ensures the benefit of avoiding mis-step for the contractual parties.