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In contract law and administrative law, delegation (Latin intercessio) is the act of giving another person the responsibility of carrying out the performance agreed to in a contract. Three parties are concerned with this act - the party who had incurred the obligation to perform under the contract is called the delegator; the party who assumes the responsibility of performing this duty is called the delegatee; and the party to whom this performance is owed is called the obligee.
Contract law
Delegable contracts
A delegation will be null and void if it poses any threat to the commercially reasonable expectations of the obligee. For example, a task requiring specialized skills or based on the unique characteristics of the promisee can not be delegated. If a specific celebrity was hired to make a speech, they could not delegate the task to another person, even if the other person would give the same speech, word for word. However, a delegation of performance that does not pose such a threat will be held to be valid. In such a case, the obligee will be under an affirmative duty to cooperate with the delegatee to the extent necessary for the fulfillment of the delegator's obligations
Breach of a delegated contract
If the delegatee fails to perform satisfactorily, the obligee may elect to treat this failure as a breach of the original contract by the delegator or may assert himself as a third party beneficiary of the contract between the delegator and the delegatee, and can claim all remedies due to a third party beneficiary.
If the delegation is without consideration, the delegator remains liable for nonperformance, while the delegatee will not be liable to anyone for anything. Unlike an assignment, a delegation is virtually always for consideration, and never donative - few people are going to accept the charitable offer to perform a task contracted to someone else.
Compare: assignment
A parallel concept to delegation is assignment, which occurs when one party transfers his present rights to receive the benefits accruing to the assignor under that contract. A delegation and an assignment can be accomplished at the same time, although the right to sue for nonpayment always stays with delegator. Under the common law, a contract clause prohibiting assignment also prohibits delegation. Another common law rule requires that a party to a contract can not delegate performance that involves special skills or reputation (although it is possible to have a novation under such circumstances).
Administrative law
In Administrative Law (the law that controls government action and decisions) a delegation is the process of handing some administrative action or decision to a subordinate. It is achieved through two mechanisms:
- Where a statute or Delegated legislation appoints an "authorized person" to manage the power for a minister or CEO. Here the delegate acts in their own name, and the delegation is a position that does not cease with the appointment of a new delegate.[1]
- In some circumstances a person in whom some power is vested can authorize another person to exercise that power on their behalf.[2][3] Here the underling is appointed to act as if they were the authorized person,[2] usually for the Administrative necessity[4][5] of managing huge work loads in a government department. Here the delegate acts in person of the authorized person rather than in their own name, and the delegator can still exercise the powers as necessary[6] even though much of the day-to-day operations are enacted by subordinates.
Concerns often arise when law-making powers are delegated to agencies in administrative law because of agency heads are not elected by the people.[7] However, there are many times when delegating law-making authority to an agency is appropriate, especially when the legislature lacks the capacity or expertise to handle a randomly evolving issue that affects multiple jurisdictions [7]
See also
- Regulatory law
- Delegated legislation
- Delegated legislation in the United Kingdom
- Abrogation in public law
References
- ^ Kelly v Watson [1985] FCA 278, (1985) 10 FCR 305, Federal Court (Australia).
- ^ a b Carltona v Commissioners of Works [1943] 2 All ER 560.
- ^ O’Reilly v State Bank of Victoria Commissioners [1983] HCA 47, (1983) 153 CLR 1 (14 April 1983), High Court (Australia).
- ^ Sandra Investments Pty Ltd v Booth [1983] HCA 46 [1983] HCA 46, (1983) 153 CLR 153, High Court (Australia).
- ^ O’Reilly v State Bank of Victoria Commissioners [1983] HCA 47, (1983) 153 CLR 1 per Brennan J.
- ^ Huth v Clarke (1890) 25 QBD 391 at 395 per Wills J.
- ^ a b Kealy, Sean. "African Parliamentary Knowledge Network Legislative Handbook: Using Evidence to Design and Assess Legislation" (PDF).
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