- •II. Agency
- •1. Direct representation: introduction
- •2. No general concept of agency in Roman law
- •3. Acting for (and through) others in Roman law
- •50 The Law of Obligations
- •52 The Law of Obligations
- •54 The Law of Obligations
- •4. The erosion of the rule against agency
- •56 The Law of Obligations
- •5. The evolution of the modern concept of agency
- •§ 788 Sachsisches Gesetzbuch; artt. 1984, 1998 code civil.
- •58 The Law of Obligations
50 The Law of Obligations
the "agent", the "principal" can avail himself of an actio in personam
only to enforce the passing on of ownership to himself. As a result, he
is, for instance, exposed to the risk of his "agent's" insolvency.
Secondly, there was the possibility of concluding a contract by means
of a nuntius.108 While in the case of agency it is the agent who makes the
declaration leading to the contract—in his own name (indirect
representation) or in the name of the principal {direct representation),
but in any event as his own declaration—the messenger merely
transmits somebody else's declaration.109 He is not involved in the
formation of the contract but in a purely mechanical way; what he
transmits is not regarded as his own, but as his "principal's"
declaration. The situation is thus similar to the conclusion of a contract
by way of letter.110
In the third place, Roman law provided for certain situations where
one party acted for another not as an agent but in his own right. This
was the concept of trusteeship: the trustee held a right in somebody
else's interest; on account of the fiduciary relationship he was bound,
however, to safeguard these interests of the beneficiary. Fiducia fits into
this category (be it cum creditore or cum amico contracta).111 Also, the
procurator ad litem may be mentioned here: he did not act as a
representative in the way that the dominus litis would have become
party to the litigation; he litigated over somebody else's claim, or
obligation, in his own right.112 Another example is tutela. Even though
the law made the greatest efforts to enable persons under tutela to
undertake the required legal acts themselves (subject to auctoritas
tutoris), there remained situations where the tutor had to act for
them.113 This he did domini loco,114 i.e. he was apparently regarded as
having some sort of (functionally limited) title over the person and
property of the ward.115 Interestingly enough, however, this view
seems to have undergone some change. Already according to classical
law the tutor could acquire possession and (as far as this was possible
through the acquisition of possession, as, for instance, in the case of
app|ies to t^e informal transactions only. Where, for example, formal oral
declarations by the stipulator and promisor are required (stipulatio), the parties could not
make use of nuntii. 10 4 As to the concept of a nuntius, ct. Flume, AT, § 43, 4; Gotz Hueck,
"Bote—Stellvertreter im Willen—Stellvertreter in der Erklarung", (1952-53) 152 Archivfiir
die civilistische Praxis 432 sqq.; Mitteis, op. cit., note 97, pp. 128 sqq. 110 Paul. D. 18, 1, 1, 2: "Est autem emptio iuris gentium, et ideo consensu peragitur et
inter absentes contrahi potest et per nuntium et per litteras." 111 Gai. II, 60. 112 Kaser, RZ, pp. 152 sqq.; Claus, Stellvertretung, pp. 52 sqq. 113 As, for example, where the impubes was still an infans or where he was absens. 114 Paul. D. 26, 7, 27: "Tutor, qui tutelam gerit, quantum ad providentiam pupillarem
domini loco haberi debet." 115 Cf. especially Max Kaser, "Ruhende und verdrangende Hausgewall im alteren
romischen Recht", (1939) 59 ZSS 31 sqq. (35 sqq.).
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Stipulatio alten, Agency and Cession 51
traditio or usucapio) ownership for the ward.116 The inadmissibility of
agency was apparently limited by the Roman lawyers to the strictly
legal sphere, and possession was not regarded as a right but as a mere
factum. Gradually, however, the praetor also started, after the
termination of the tutela, to grant actiones utiles for and against the
former ward where the tutor had acquired contractual rights117 and
incurred obligations118 on behalf of the ward.119 Here the basic principle
against agency was certainly disregarded.
Fourthly, third parties could, under certain circumstances, dispose
over the rights of others and in this way act for those other persons.
The non-owner could transfer property or encumber it with a right of
pledge, the non-creditor could release the debtor from his debt by
means of a pactum de non petendo, etc., provided only that the
transaction required no formalities and that the true owner, creditor,
etc., had either approved of the transaction or ratified it.120 The
Romans did not regard the third party as an agent in these cases; he was
not acting on behalf of the party entitled to the right, but was entering
into a transaction of his own.
(b) The paterfamilias acting through his dependants
All these devices would still not have obviated the need for agency in
Roman law. Fifthly, therefore, and most importantly, the fact has to be
taken into account that a paterfamilias could act through his children in
power and his slaves. These persons were not able to have proprietary
rights; thus, whatever they acquired fell to the paterfamilias.121
Whether they had acted in their own name or not was irrelevant;
neither did it (usually) matter whether the paterfamilias knew of or had
willed their acts.122 Max Kaser123 has explained this phenomenon in
terms of the concept of " Organschaft": in the same way as a human
being uses his limbs or as (today) ajuristic person uses his organs to act,
the Roman paterfamilias was able to act through his dependants. For
the purposes of acquisition, they served the function of animated
116 Ner. D. 41, 1, 13, 1; Paul. D. 41, 2, 1, 20. 117 Cf. Ulp. D. 26, 7, 9 pr.; Ulp. D. 13, 5, 5, 9. 118 Cf. Scaev. D. 36, 3, 18, 2. 119 Actiones utiles were also granted for and against municipia on account of the acts of
their actor (representative in court): Paul. D. 3, 4, 10; Ulp. D. 13, 5, 5, 7 sqq.; cf. further
Ulp. D. 12, 1, 27.
™ Cf. Gai. D. 41, 1, 9, 4; Ulp. D. 6, 1, 41, 1; Paul. D. 13, 7, 20 pr. 121 Cf. recently Wolfgang Kruger, Erwerbszurechnung kraft Status (1979), pp. 21 sqq.; as far
as Ehe acquisition of possession through persons in power is concerned, see Hans-Peter
Benohr, Der Besitzerwerb durch Gewaltabhangige im klassischen romischen Recht (1972). On the
problems arising in situations where a slave has several domini, see Geoffrey MacCormack,
"Nomination: Slaves and Procurators", (1976) 23 RIDA 191 sqq.
122 Cf . Gai . I I , 86 s qq.
123 (1970) 9 Romanitas 343 sqq.
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