In tlic nature of a ratification of the act, and is intended to

clothe the act with the same qualities as if there had been a

prior appointment. Two cases of ratification are clearly dis-

tinguishable : first, where the agent had no prior authority for

any purpose and the ratification operates as an appointment

as agent and as authority to do the act ratified ; second, where

the agent had some prior authority, but exceeded it in the act

In question, and the ratification operates as an extension of

the authority so as to cover the act ratified.

(2) Statement of doctrine. Subject to the exceptions here-

after mentioned,^ where one person, whether no agent for any

purpose or an agent exceeding his. authority, does an act as

agent in the name of or on behalf of another in excess of au-

thority (if any) conferred upon him, the person in whose name

or on whose behalf the act was done may ratify the act and

thereby give to it the same legal effect as if the one doing it

had been in fact an agent, or, being an agent for some pur-

poses, had been in fact authorized to do the act in question.^

1 Post, в§в§ 42-44.

2 Y. B. 7 H. IV. Z\,pl. 1; Wilson v. Tumman, 6 iM. & G. 230; Phila-

delphia, &c. R. V. Cowell, 28 Pa. St. 329 ; McCracken v. San Francisco,

16 Cal. 501; Grant V. Beard, 50 n. H. 129; Dempsey V. Chambers, 154

Mass. 330, where the history of ratification is given, and it is sliown that

the doctrine applies to master and servant as well as to principal and

agent.

BY HATIFICATIOX. 43

When such unauthorized act comes to the knowledge of the

one in whose name or on whose behalf it was assumed to be

performed, he has an election either to repudiate the act or to

ratify and adopt it. If he elects to accept it, the acceptance

or adoption of it constitutes a ratification, and relates back to

the time the act was performed in such manner as to involve

the principal and third person on the one hand, and the prin-

cipal and agent on the other, in the same legal consequences

as would have ensued had the act been authorized in advance.

The principal's option to repudiate or ratify secures to him a

certain advantage in creating a contract relation which is

anomalous, but which the law permits him to enjoy .^ But in

order that he shall have this advantage, it is necessary that a

contract shall actually have been consummated prior to the

attempted ratification, ^

The subject of ratification falls into two main heads : (1)

Elements, or conditions, of ratification ; (2) Legal effects of

ratification.

1. Elements of Ratification.

В§ 31. Analysis of elements.

The essential elements or conditions of ratification are as

follows : (1) An act performed by an " agent" in behalf of an

existing " principal ;" (2) The subsequent real assent of the

principal to the act so performed in his behalf ; (3) The com-

petency of the principal to give a binding assent ; (4) In some

cases an assent expressed in a particular form; (5) The

legality of the act ratified ; (6) Exceptions to the doctrine.

В§ 32. (I.) Act performed in behalf of existing principal.

Two elements must concur before the basis for ratification

can be said to be laid : (1) The principal must be an existing

person capable of being ascertained, and (2) The contract

must have been made in the name of and in behalf of such

existing and ascertainable person.

1 Hagedorn v. Oliverson, 2 M. & S. 485; Williams v. North China

Insurance Co., L. R. 1 C. P. D. 757.

2 Whitiug V. Mass. &c. Ins. Co., 129 Mass. 240.

44 FORMATION OF AGENCY

(1) The principal must be an existing person. If an agent

professes to make a contract in behalf of a corporation to be

formed, but not yet in existence, the contract is incapable of

ratification after the corporation has a legal existence.^ The

corporation may make a new contract upon the same terms

as the original one, but this is a dififerent matter from ratifica-

tion. It is one thing to intend to ratify and to proceed upon

the assumption that there is a ratification, and another thing

to intend to make a contract and to proceed upon that assump-

tion,2 But if after the incorporation the company is found in

possession of property or benefits accepted under the terms of

the contract, this may be equivalent to proof of a new contract

on the terms of the original one or of a novation.^ This comes