1

INTRODUCTION
Commercial transactions at any level would be impossible and precarious in the absence of agency
relationships. Robert Lowe1in his text on Commercial Law writes that, The concept of agency is
fundamental to modern commercial law; it lies at the very heart of the subject and without it modern
commerce would not exist. Due to the vast expansion of modern business, it is not possible for a person
to carry on all business transactions himself. The person who acts on behalf of some other persons is
known as an agent and the person on whose behalf the agent acts, is known as the principal. The contract
which creates the relationship of principal and agent is known as an agency 2.With this background the
essence of this paper is to advise the parties involved in the matter in question through a thorough
considerations of the legal issues. The position of the law as regards the legal issues shall also be given
followed by an application of this law to the facts of the case. Lastly, the paper will be concluded in an
advisory fashion.
THE LEGAL ISSUES
1. Considering that one needs capacity3 to enter into a contract, was an agency relationship created
between Kamba and Sapi?
2. If it is settled that an agency relationship existed did Sapi have authority as an agent when transacting
with Kalidas? Following this, what is the effect of whether the agency relationship was disclosed or
undisclosed as regards Sapis contract with Kalidas and Wasanje Breweries with respect to ratifiable
acts?
3. A contract can either be void or voidable4.With this borne in mind can Kamba who has now attained
the age of majority (the age of majority is eighteen years) ratify the actions of Sapi as regards his
dealings with Kalidas and Wasanje Breweries?
THE POSITION OF THE LAW
According to Lowe5 an agency relationship can be defined as the relationship which arises whenever one
person (the agent) acts on behalf of another person (the principal) and has power to affect the principals
legal position with regard to a third party. An agent is basically a person employed to act on behalf of
another and an act done within the scope of his authority, binds his principal 6.Malila7contends that As a
general rule, there is no requirement that an agent must have full contractual capacity when he acts on
behalf of the principal. This is because the contract is that of the principal, not the agentit is legally
possible for a minor to act on behalf of an adult principal in bringing about a binding contractual
relationship with a third party who has contractual capacity. The author further points out that the
agency contract between the principal and the minor agent will however not be binding on the agent
because of the agents minority. This is quite clear but for purposes of addressing the legal issue as
regards contractual capacity, the question to be asked is whether or not a minor (acting as principal) can
at law appoint an agent to perform certain acts on his behalf. An agent does not generally require or need
contractual capacity but it must be highlighted at this juncture that an essential element of a valid agency
1

Lowe,R.1983.Commercial Law.6th Edition.London:Sweet & Maxwell,pg 6

Gogna, P.P.S.2005.A Textbook of Mercantile Law. New Delhi.S Chand & Co.pg 245
3
Capacity-in order to form a wholly valid contract, the parties must have legal capacity. One of essential
conditions for the enforceability of an agreement is that the concerned parties must be competent to enter
into an agreement.
4
A void contract is one of no legal effect while a voidable contract is one capable of being set aside.
5
Lowe,R.1983.Commercial Law.6th Edition.London:Sweet & Maxwell,pg 6
2

6
7

Bone,S(ed).2001.Osborns Concise Law Dictionary.London:Sweet & Maxwell,pg 23

Malila,M.2006.Commercial Law in Zambia: Cases & Materials.Lusaka:UNZA Press,pg 8

2
is that the principal must be competent to contract. In support of this point of law, Gogna 8 writes that the
principal must be competent to enter into a valid contract effectively implying that he must be of sound
mind, and have attained the age of majority (he should have completed 18 years of age).Thus, a minor,
or a person of unsound mind (insane person) cannot appoint an agent to act on his behalf. This author
seems to suggest that an appointment of an agent made by an incompetent person is void.Malila
similarly advances that the principal must have contractual capacity at time the contract in question is
entered into. We can therefore safely note that an agent acting on behalf of an incompetent principal will
be personally liable, for his acts, to third persons with whom he contracts. In the case of Bevan v Webb9
in which Stirling J stated that the common law rule is that any person can act through an agent-qui facit
per alium facit per se, a minor appointed an agent and authorized him to purchase 50 Aristocrat brief
cases for him. Accordingly the agent purchased the 50 Aristocrat brief cases on credit from a third
party on behalf of the principal minor. The minor later refused to pay the price of the brief cases. It was
held in this case that the agent was personally liable to the third party to pay the price of the brief cases.
This is in tandem with what was earlier pointed out above that an appointment of an agent, made by an
incompetent person is void. Similarly, in Re Shepherd10Denning LJ declared that a minor could never
appoint an agent or be bound by the agents acts. His Lordship aptly stated that, He (the minor) is all
too likely to choose the wrong man! This position of the law is however not conclusive and
Lowe11points out that there are several cases which do not support such a sweeping proposition and that
it has been forcefully criticized by academic writers. This is because in certain circumstances, a minor is
capable of binding himself by a contract and in such cases; he may appoint an agent to contract on his
behalf. The rationale here seems to be that whatever a person can do personally; he can do the same
through an agent also. Lord Denning himself admitted later that the statement made in Re Shepherd was
too wide. In the matter of G v G12 a case involving the payment of money said to be done on behalf of
the defendant aged 17, Lord Denning himself narrowed his wide statement by stating that the true
principle was that a minor could not appoint an agent to dispose of property so as to bind him
irrevocably with reference to the facts in Shepherd v Catwright.Lord Denning in passing
judgment13stated, The first question in the case stated is: Whether an infant has the capacity to
appoint an agent. I am afraid that I have caused some trouble here; because in Re Shepherd (decided),
Shepherd v Cartwright I said: an infant cannot appoint an agent to act for him, neither by means of
a power of attorney, nor by any other means. It must be read in its context and limited accordingly. The
correct proposition is that an infant cannot appoint an agent to make a disposition of his property so as
to bind him irrevocably. A disposition by an agent for an infant is voidable just as a disposition by the
infant himself would be, so long as it is avoided within a reasonable time after attaining full age as
evidenced in Edwards v Carter and Chaplin v Leslie Frewin (Publishers) Ltd.That proposition does not
apply here, because we are not concerned with a disposition of property by an infant. We are concerned
with a simple act, namely, the payment of money, said to be done on behalf of a defendant aged 17. To
such an act, the general principle is, I think, this: whenever a minor can lawfully do an act on his own
behalf, so as to bind himself, he can instead appoint an agent to do it for him. Thus, if a minor can
lawfully bind himself by a particular contract because it is for his benefit, he can lawfully appoint an
agent to enter into it for himApplying this general principle, I first ask myself whether this act (the
8

Gogna, P.P.S.2005.A Textbook of Mercantile Law. New Delhi.S Chand & Co.pg 245
(1901) 2 Ch 59,77
10
(1953) Ch 728 & 755
11
Lowe,R.1983.Commercial Law.6th Edition.London:Sweet & Maxwell,pg 12
12
(1970) 2 Q.B. 643,652
13
G v G .Ibid., per Lord Denning
9

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payment of money) could lawfully have been done by a minor himself on his own behalf. The answer is
Yes. A young man under 18, who is the father of a child, can lawfully bind himself to pay money for its
maintenance. As Lord Mansfield CJ said in Zouch d Abbot & Hallet v Parsons (1765): If an infant
does a right act which he ought to do, which he was compellable to do, it shall bind him. So the
defendant could lawfully pay maintenance for this child. It was a right act which he ought to do and
which he was compellable to do. Seeing that he could lawfully do it himself, he could lawfully authorise
an agent to do it for him. He could tell his bank or his solicitor to pay the money. He could ask his
parents to do so. He could put it into the Post Office. In all these cases he is paying it by means of an
agent. It certainly binds him so long as it is done with his authority.
It should be appreciated that whatever a person can lawfully do himself, he may also do the same
through an agent. This is not only a principle of agency but also the position of the law. As regards the
legal issue before us the question that should be asked is whether Kamba who is still a minor during the
time of the contracts by Sapi do what the agent (Sapi) was doing lawfully and on his own behalf as a
minor. An example is what happened in Doyle v White City Stadium Ltd. Jack Doyle, a professional
boxer, under 21, made an agreement through his manager. It was for his benefit and was held binding
on him.
The expression apparent authority means any authority which the agent appears to have, so that it
overlaps with actual authority if the agent does an authorised act 14.When a third party deals with an
agent clearly he cannot be expected to concern himself with the precise limits of the agents actual
authority. He relies instead on the appearance of authority. This has crystallized into the maxim that so
far as the third party is concerned, the apparent authority is the real authority. These were the
endambulations of Scrutton L.J in the case of Reckitt v Barnett Pembroke and Slater Ltd 15.With
reference to the Zambian case of Zambia Revenue Authority v Hitech Trading Co. Ltd 16, a case
involving an agent Bank and the debiting of monies into the respondents accounts at the instructions of
the appellant, it must be understood that where the agent acts outside his actual authority but has
apparent authority, the principal is liable on the contract but cannot enforce on the basis of apparent
authority alone because apparent authority is based on estoppel17 and it can be used only as a shield and
not as a sword.However,as a disclosed principal he should be able to ratify provided the conditions for
ratification are fulfilled18.The idea here is to establish whether Sapi as agent (if at all, in law Kamba can
appoint him) acted with apparent authority. This also brings us to the legal issues of disclosed and
undisclosed agency; and the concept of ratification.
The distinction between disclosed and undisclosed agency is important as it affects the principals ability
to ratify the agents actions. The rights and liabilities of principal and agent against third parties may
differ according to whether the agency is disclosed or undisclosed 19.The position with regard to contracts
made by the agent on the principals behalf depends on whether the principal was named, disclosed or
undisclosed. In the matter before us the contract between Sapi and Kalidas is disclosed and this is
14

Lowe,R.1983.Commercial Law.6th Edition.London:Sweet & Maxwell,pg 10-11

(1928) 2 K.B. 244,257
16
SCZ (2000) ZR 80
17
Estoppel-the term estoppel may be defined as prevention of a claim or assertion by law. In other words,
when someone makes another person to believe that a particular thing of fact is true, then later on be
allowed to deny the truth of that thing.
18
Malila,M.2006.Commercial Law in Zambia: Cases & Materials.Lusaka:UNZA Press,pg 58
19
Ibid., at page 70
15

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suggested by the fact that Kalidas approaches Kamba.On the other hand the contract involving Wasanje
Breweries the principal is undisclosed. The rule of law is that the principal will be liable if the agent had
authority (express, implied, usual or apparent) or if he ratifies the agents act. Only a disclosed principal
can ratify an unauthorised contract.
One condition for a valid ratification is that the principal must be competent to contract and in existence
at the time of contract20.This implies that an act done on behalf of a minor without his authority, cannot
be ratified by him on attaining majority.Furthermore,the acts to ratified should be valid and
lawful.Gogna states that the ratification can be made only of valid and lawful acts.Thus,an act which is
void from the beginning or which constitutes a criminal offence, cannot be ratified.However,a voidable
contract may be ratified because it is not void from the very beginning. This is illustrated in the case of
Williams v Moor21in which the defendant argued that the contracts in question were entered into when
the defendant was an infant incapable of contracting and were void and therefore incapable of
ratification. It was held that on principle, an infant, upon the age of majority, may ratify, and thereby
make himself liable on contracts made during infancy. In this case it is quite clear that the contract was a
Mohoribibi v Dharmodas Ghose voidable one and could thus be enforced as it was for the benefit of the
minor. This is because in certain exceptional circumstances, minors agreements are considered valid
and enforceable; for example where agreement is for the benefit of the minor, or is for the supply of
necessaries to the minor.
As opposed to this, the general rule is that a minors agreement is void ab initio (non-existent from the
very beginning), and is therefore absolutely void and devoid of any consequences. This was the holding
in the Indian case of22where the question before the Court was to establish whether a minors contracts
were void or voidable.It was stated that a minors agreement was absolutely void save in certain
exceptional circumstances. It then follows that a minor cannot ratify a void contract after attaining the
age of majority to make him legally bound to contracts made during his infancy by either himself or by
an alleged agent.
APPLICATION OF THE LAW TO THE FACTS IN THE KAMBA CASE
It was generally accepted that because of lack of contractual capacity a minor or infant could not appoint
an agent to carry out or execute certain actions on his behalf.This as pointed out by Denning LJ in G v G
is too wide an assertion and highly impracticable because one principle of agency is that whatever a
person can lawfully do himself, he may also do the same through an agent. In this regard the question
that must be asked in order to establish if there was an appointment of an agent by the minor Kamba is
whether the act could lawfully have been done by the minor himself (Kamba) on his own behalf. The
law is clear: trade contracts with minors are absolutely void (Mohoribibi v Dharmodas Ghose
case).Kamba does not as a minor therefore have the capacity to appoint an agent for purposes of trade
contracts in various businesses which include milling because this is not an act that he can do lawfully
and on his own behalf. It follows then that the issue of capacity and creation of an agency relationship is
settled.Kamba cannot appoint his uncle Sapi to act as his agent for such transactions. Clarity should also
be placed on the legal issue dealing with apparent authority, what follows as estoppel and the subsequent
ratification by a minor upon attaining full age 23.Ostensible or apparent authority which negatives the
existence of actual authority is merely a form of estoppel.Sapi the supposed agent in transacting by
20

Gogna, P.P.S.2005.A Textbook of Mercantile Law. New Delhi.S Chand & Co.pg 249
(1843) 11 M & W 256;152 ER 798
22
(1903) 30 Calcutta 539
23
Full age means eighteen years of age which is the age of majority.
21

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buying K50 million worth of maize was using apparent authority when dealing with Kadilas and
Wasanje Breweries. The doctrine of estoppel would ordinarily be used against a principal who wishes to
deny his agents power to bind him to third parties but we have just established that in actual fact there
was no agency relationship that was created between Kamba and Sapi.The only way in which Kamba
may be made legally bound on the contracts is if he now ratifies Sapis contracts considering he is now
of full age but that will depend on whether the contractual arrangement on the whole was void or
voidable.
The case of Williams v Moor has shown us that an infant upon reaching the age of majority, may ratify,
and thereby make himself liable on contracts made during infancy. This will only apply where the
contract is voidable, for example where the agreement is for the benefit of the minor. In the Kamba case
his contractual arrangement with his uncle Sapi is void.Malila attests to this by emphasizing that the act
performed by the agent which the principal seeks to ratify must be ratifiable.An act which is illegal or
contrary to public policy, for example, cannot be ratified.24A trade contract with a minor through an
agent is void or illegal.Gogna25 agrees with this. Provisions of the Infants Relief Act 1874 seem to
suggest this. The doctrine of no ratification implies that an agreement made by a minor (during his
period of minority), cannot be confirmed by him on attaining majority. This is so because minors
agreement is void ab initio and, therefore, cannot be made valid by ratification. The current position is
that if a minor wants to carry out the agreement, a fresh agreement should be made on attaining majority.
It should be noted that a new agreement will also require fresh consideration (Infants Relief Act
1874).This has effectively altered the common law position as held in the 1843 case of Williams v Moor.
Ratification inevitably brings in the aspect of whether the agency is a disclosed or undisclosed one. The
facts before us clearly indicate that the Kamba is disclosed by Sapi to Kalidas while Wasanje Breweries
were not aware that Sapi was acting on behalf of someone. Though Kamba was disclosed to Kalidas as
the principal, Kadilas cannot recover payment for the credit arrangement because Kamba is not legally
bound. Moreover, he cannot ratify an act arising form a void contract. As regards the undisclosed agency
for the supply contract to Wasanje Breweries Limited the court in Keighley Maxted & Co. v Durant 26
observed that the agent in that case contracted in his own name and therefore his act was not open to
anybodys ratification. The ratification made by the principal was ineffective. An agent must act in such
a way that his conduct shows that he is doing the act on behalf of the principal.Sapis conduct shows that
he was acting in his own name, which does not indicate any agency relationship and his act cannot
consequently be ratified.
ADVICE
The legal issues have thoroughly been considered and applied to the facts of the case in question. The
principles of law have been outlined and the relevant authorities cited. It follows that Kamba will not be
liable to Kalidas for the payment and can also not sue or recover from Wasanje Breweries for breach of
contract.Kambas contracts made by Sapi while he was a minor are void ab initio.Kadilas may recover
from Sapi who was apparently acting in a representative capacity for an invalid agency with such
conduct that does not show that he was acting on behalf of someone

BIBLIOGRAPHY
Lowe, R.1983.Commercial Law.6th Edition. London: Sweet & Maxwell
24

Malila,M.2006.Commercial Law in Zambia: Cases & Materials.Lusaka:UNZA Press,pg 25

Gogna, P.P.S.2005.A Textbook of Mercantile Law. New Delhis Chand & Co.pg 55
26
(1901) AC 240
25

Gogna, P.P.S.2005.A Textbook of Mercantile Law. New Delhi.S Chand &

Co.
Bone, S. (Ed).2001.Osborns Concise Law Dictionary. London: Sweet &
Maxwell
Malila, M.2006.Commercial Law in Zambia: Cases &Materials. Lusaka:
UNZA Press
CASE REFERENCES
Bevan v Webb
Re Shepherd
GvG
Doyle v White City Stadium Ltd
Reckitt v Barnett Pembroke and Slater Ltd
Zambia Revenue Authority v Hitech Trading Co. Ltd
Williams v Moor
Mohoribibi v Dharmodas Ghose
Keighley Maxted & Co. v Durant
LEGISLATION
Infants Relief Act 1874