Study guide
4.3 Delegation of Duties
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
4.3 Delegation of Duties
Key Takeaways Explain This Topic AI
Duties are delegable unless performance is personal, the obligee has a substantial interest in having the original promisor perform, or delegation is barred by the contract or public policy.
Delegation never discharges the delegating party, who remains liable for breach unless the obligee agrees to a novation that substitutes the delegatee.
A delegatee who assumes the duty for consideration becomes directly liable to the obligee, who may enforce as an intended third-party beneficiary.
The obligor may assert against an assignee every defense arising out of the contract itself, and personal defenses that accrued before receiving notice of the assignment.
Payment made in good faith to the assignor before notice of the assignment discharges the obligor.
Last updated: September 2026
- Delegation of Duties
- Delegation of Duties: Delegable vs. Non-Delegable
Delegation occurs when an obligor ( delegator ) appoints a third party ( delegatee ) to render the performance owed to the obligee. While assignment transfers a benefit, delegation transfers a burden .
Delegable Duties
As a general rule, duties are freely delegable if they involve standard commercial, mechanical, or impersonal performance where the obligee's expectation can be fully satisfied by an objective standard:
- Routine construction and carpentry work;
- Painting a commercial warehouse or exterior fence;
- Delivering standardized commercial goods;
- Basic vehicle maintenance or mechanical repair;
Agricultural harvesting or lawn care.
Non-Delegable Duties
Under the common law and UCC § 2-210(1) , a duty is non-delegable without the obligee's consent if:
Personal Skill & Artistic Judgment: The performance depends on unique individual talent, artistic discretion, or specialized intellectual reputation (e.g., portrait painting, performing a violin concerto, writing a novel, designing an architectural showpiece, or performing surgery);
Special Relationship of Trust: The duty arises from a confidential or fiduciary relationship (e.g., attorney-client legal representation);
Material Alteration of Expectation: The delegation would materially alter the obligee's reasonable expectation of return performance; or
Express Contractual Prohibition: The contract expressly prohibits delegation (non-delegation clauses are strictly enforced).
Liability Following Delegation: Delegator, Delegatee & Novation
A critical FYLSE issue is determining who remains liable after a delegation occurs.
1. The Delegator Remains Bound
Core Rule: A delegation does NOT relieve the delegator of contractual liability.
The delegator remains fully liable to the obligee as a surety or guarantor. If the delegatee performs defectively or abandons the project, the obligee can sue the delegator directly for total breach of contract. The delegator cannot defend by claiming that the performance obligation was transferred to someone else.
2. The Delegatee's Liability to the Obligee
Does the obligee have a cause of action against the delegatee if the delegatee defaults?
Mere Delegation Without Assumption: If the delegator merely appoints the delegatee to perform and the delegatee promises nothing, or the delegation is gratuitous, the delegatee incurs no contractual obligation to the obligee. The obligee cannot sue the delegatee.
Assumption of Duties: If the delegatee promises the delegator, in exchange for consideration, that the delegatee will perform the delegated duty, an assumption of duty occurs. Under Restatement (Second) § 328 and UCC § 2-210(5) , the obligee becomes an intended third-party creditor beneficiary of the assumption agreement. The obligee can maintain a direct breach of contract action against the delegatee.
Dual Recourse: Where an assumption occurs, the obligee can sue either the delegator (on the original contract) or the delegatee (on the assumption contract), though the obligee is entitled to only one satisfaction.
3. Novation: Complete Discharge of the Delegator
The only way an original delegator is released from liability is through a novation .
A novation is a three-party agreement that extinguishes the original contract, releases the original delegator, and substitutes a new contract between the obligee and the delegatee.
The Four Elements of a Novation
To establish an effective novation, four elements must be satisfied:
- A previous, valid existing contract;
- Mutual assent of all three parties (obligee, delegator, and delegatee) to the substitution;
- Immediate, express, and complete extinguishment of the delegator's obligation ; and
A valid, enforceable new contract between the obligee and the delegatee.
The Classic Novation Trap: The obligee's mere consent to a delegation, or the obligee's acceptance of performance and payments directly from the delegatee, is NOT a novation . It is merely recognition of an ordinary delegation. Unless the obligee manifests a clear, express intention to release the delegator from liability, the delegator remains fully liable.
Comparison: Delegation vs. Assumption vs. Novation
Feature Mere Delegation Assumption of Duties Novation
Parties Agreeing Delegator and Delegatee Delegator and Delegatee (with consideration) Obligee, Delegator, and Delegatee
Delegator Discharged? No. Remains liable as surety No. Remains liable as surety Yes. Completely released
Obligee Sues Delegator? Yes. Direct contractual privity Yes. Direct contractual privity No. Obligation extinguished
Obligee Sues Delegatee? No. No privity or assumption Yes. As third-party beneficiary Yes. Direct privity under new contract
Defenses of the Obligor Against the Assignee
When an assignee sues an obligor to collect an assigned claim, what defenses can the obligor assert?
The Assignee Stands in the Assignor's Shoes
An assignee acquires no greater rights than the assignor possessed. The obligor may assert against the assignee:
Contractual Defenses: Any defense arising out of the contract itself, regardless of when the defense arose (e.g., failure of consideration, breach by assignor, fraud, illegality, or non-occurrence of conditions).
Independent Setoffs (Accrual Rule):
Defenses Arising Before Notice: The obligor may assert separate, independent claims or setoffs against the assignor if they accrued before the obligor received notice of the assignment.
Defenses Arising After Notice: Once the obligor receives formal notice of the assignment, the obligor cannot assert against the assignee any subsequent independent claims or setoffs that accrue against the assignor after notice.
- FYLSE Exam Scenarios & Doctrinal Traps
- Scenario 1: The Commercial Lease Assignment & Delegation
Hypothetical: Tenant leased commercial office space from Landlord under a ten-year lease at $8,000 per month. In Year 4, Tenant assigned all leasehold rights and delegated all rental payment duties to Assignee. Landlord signed a letter stating: "Landlord hereby consents to the assignment to Assignee." Assignee occupied the premises and paid rent directly to Landlord for three years. In Year 7, Assignee went bankrupt, abandoned the premises, and defaulted on the remaining three years of rent ($288,000). Landlord sued Tenant for the unpaid rent. Analysis: Tenant is fully liable. A delegation of duties does not discharge the delegator. Landlord's consent to the assignment was merely an acknowledgment of the delegation, not a novation. Because Landlord never agreed to release Tenant, Tenant remains liable as a surety on the lease.
Scenario 2: The Anti-Assignment Clause Trap (Right vs. Power)
Hypothetical: A developer contracted with a paving contractor to pave a shopping center parking lot for $100,000. The contract provided: "Neither party may assign rights under this agreement without prior written approval." The contractor assigned its right to the $100,000 payment to a commercial factoring company without the developer's approval. The contractor completed the paving perfectly according to specifications. The factoring company demanded payment from the developer. The developer refused, arguing the assignment was illegal and void under the contract. Analysis: The clause prohibited the assignment of rights, destroying the contractor's right to assign, but not the power to assign. Because the clause lacked explicit voiding language ("any assignment shall be null and void"), the assignment remains valid. The developer must pay the factoring company $100,000. While the developer can theoretically sue the contractor for breach of the non-assignment covenant, the developer suffered zero actual damages because the paving was performed perfectly.
Scenario 3: The Portrait Painter Apprentice
Hypothetical: A prominent socialite contracted with a famous master portrait artist to paint her official portrait for $50,000. The master artist had an emergency and delegated the painting of the portrait to his top studio associate, an artist of recognized skill. The associate painted a portrait of exceptional technical quality. When the socialite discovered that the associate had painted the canvas, she refused to accept delivery or pay the $50,000. The master artist sued the socialite for breach. Analysis: The socialite is not liable. Duties involving unique personal skill, artistic judgment, and specialized reputation are non-delegable without the obligee's consent. The socialite bargained specifically for the master's personal talent and vision. Delegating the task to an associate, even one of exceptional skill, was an unauthorized delegation and a material breach of contract, justifying the socialite's rejection.