Delegation is a
term used in the law of contracts to describe 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.
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 Bill Clinton were hired to make a
speech, he 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 under an
affirmative duty to cooperate with the delegatee
to the extent necessary for the fulfillment of
the delegator's obligations under the contract.
Breach
of a delegated contract
If the delagatee 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 delagator
and the delegatee, and can claim all remedies due
to a third party beneficiary.
If the delegation is without consideration, the
delagator remains liable for nonperformance,
while the delagatee 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 delagator. 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).
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