Global Technology and Modern Commercial Agency of Necessity

1. Introduction



Agency is based upon consensual obligations between the agent and the principal, but the emergent Georgian commercial community required judicial intervention to assist in achieving some desired commercial objectives. As McCardie J. explained in Prager v. Blatspiel, Stamp and Heacock Ltd [1924] 1 K.B. 566 at 570:



'The object of the common law is to solve difficulties and adjust relations in social and commercial life. It must meet, so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that it fails in its function and declines in its dignity and value. An expanding society demands an expanding common law.'


Agency of necessity addressed the problem articulated by Lynskey J. in Munro v. Willmott [1949] 1 K.B. 295 at 297: 'masters of ships who found themselves in foreign parts and unable to get immediate instructions from their owners when they needed money for expenses which had not been provided for' Other jurisdictions have addressed the need merely by extending implied authority in an emergency (Reynolds, 1990 referring to Mechem, 1914) but English law plugged the gap by the doctrine of 'agency of necessity', a cousin of the law of salvage, permitting the sale of cargo or the pledging of a vessel to raise funds expressly to allow the voyage to continue - Arthur v. Barton (1840) 6 M & W 138. It curiously lacks coherence (Bowstead and Reynolds, at 4-002) and in Re Banque Des Marchands De Moscou [1952] 1 All ER 1269 (at 1277), Vai...

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