- •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
56 The Law of Obligations
related only to the acquisition of the actio directa by the third party and
not to the acquisition of an actio utilis. Throughout the centuries
lawyers attempted to find ways and means of extending whatever
approximated agency in the Digest. Friedrich-Carl von Savigny, for
instance, used the institution of nuntius to try to show that the Romans
had recognized agency;157 furthermore, he alleged that the "alteri
stipulari nemo potest" rule had been applied only to stipulations: since
stipulations no longer existed, the rule had, for all practical purposes,
been abrogated and therefore did not stand in the way of agency.158-15y
5. The evolution of the modern concept of agency
By this time, however, despite all the theoretical disputes, the
institution of agency was firmly entrenched in practice. The needs of
the expanding commerce had, since the Middle Ages, been the most
important impetus for the recognition of this device; also, the changes
in economic, political and social structures1611 somehow had to be
accommodated. It is therefore hardly surprising to find the "alteri
stipulari nemo potest" principle already abandoned in the statutes of the
upper Italian city states, those early centres of flourishing trade and
commerce,161 and then in 17th century Roman-Dutch jurisprudence.162
Even though the Dutch authors did not yet distinguish between agency
and stipulatio alteri, they carved out and emphasized some aspects
which to us are of fundamental importance for the law of agency today:
the agent's acts directly bind the principal (Ulrich Huber:163 "Moribus
hodiernis ut obligatio immediate per ahum cui mandatum dedimus in
nos transit, ita nee dubium est"); the agent must have acted in the name
of the principal (Johannes Voet:164 ". . . quas (actiones] tarnen nostris
moribus cedi haud opus, quoties mandatarium non suo, sed mandantis
nomine contraxisse expressum est; . . . si suo nomine procurator
contraxerit, cessionem actiones fieri necesse est");165 and the principal is
157 Obligationenrecht, vol. II, § 57.
1SH Obligationenrecht, vol, II, § 56.
159 On the relationship and mutual impact of the actio de in rem verso and agency, see
Kupisch, Versionsklage, pp. 30 sqq.
It is rather surprising to see how, for instance, some of the humanists condemned
slavery as not being reconcilable with the Christian teaching, but nevertheless extensively
discussed and regarded as binding the sources of Roman law relating to the legal position of
slaves (for instance, in the present context, as one of the exceptions to "alten stipulari nemo
potest"). But see, on the other hand, Simon van Leeuwen (Censura Forensis, Pars i, Lib. II,
Cap. XII, n. 2), who argued that since slavery had been abolished, the Roman rules relating*
to acquisition through slaves had to be applied to those free persons ("famulos, et ministros
liberos homines, qui nobis operis suis inserviunt") who had taken their place.
161 Cf. analysis and references in Muller, op. cit., note 43, pp. 55 sqq.
162 Cf. De Wet, (1942) 6 THRHR 210 sqq.; D.J. Joubert, Die Suid-Afrikaanse
Verteenwoordigingsreg (1979), pp. 13 sqq.
163 Disputationes Iuris Fundamentales (Franequerae, 1688), Disp. LI, n. 9.
164 Commenterais ad Pandectas, Lib. XVII, Tit. I, IX.
165 In the same passage, Voet, incidentally, compares procurators and nuntii: ". . . quia
procuratores hodie in negotiis contrahendis considerantur magis ut nuncii." This has been
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Stipuiatio alteri, Agency and Cession 57
not only an additional debtor but he is liable in the place of the agent
(Simon van Leeuwen: "A quibus tamen moribus nostris in tantum
receditur, ut non in institores aut praepositos directa detur actio, sed
adversus ipsos Dominos praeponentes agi debeat, qui institorum
nomine tenentur, nisi cum us sit actum quos institores aut praepositos
suos negant").166
Whilst the writers of the Dutchjurisprudence, and later on also of the
German usus modernus pandectarum, argued from the point of view of
commercial practice and the mores hodierni, it was left to the natural
lawyers (who subjected Roman law to criticism from the point of view
of natural justice) to break away decisively from the principle of "alteri
stipulari nemo potest" and to lay the conceptual cornerstones for the
future.167 This state of affairs is reflected in the first wave of
codifications inspired by natural law and enlightenment.1flH In the
course of the 19th century, the conceptual framework was further
refined. Brinz169 and Windscheid170 firmly established the so-called
representation theory: it is the agent's will (not the principal's as
expressed through the agent) that is necessary for the conclusion of the
contract. Thus, the agent is not to be regarded as some sort of juristic
organ through which the principal acts.171 As a consequence of this
perspective, the requirements for the validity of the contract concluded
through the agent (as, for instance, whether there was fraud, duress or
error) have to bejudged with a view to the person of the agent, not the
principal.172 Paul Laband173 eventually introduced the conceptual
distinction between the grant of authority and the legal relationship
giving rise to it (mandate). This became known as the doctrine of
translated by Percival Gane (The Selective Voet, vol. I l l (1956) in the following way; ". . .
because agents are rather regarded today in making business contracts as messengers." On
that basis, Voet's opinion has been criticized in (1910) 27 SALJ 385. According to Muller,
op. cit., note 43, p. 109, Voet is saying that the agent is more than a nuntius.
166 Censura Forensis, Pars I, Lib. IV, Cap. Ill, n. 10.
167 Cf. supra, pp. 43, 45 sq., and Muller, op. cit., note 43, pp. 123 sqq. This was then also
taken over in the usus modernus, cf. e.g. Lcyscr, Meditationes ad Pandectas, Spec. DXIX; for
France, see Pothier, Traite des obligations, im. 74 sqq. For details of the development, see, in
particul ar, Coing, pp. 426 sqq., 429 sq.; Cappellini, HD, vol. 38, pp. 447 sqq.
168 Cf. § 85 I 13 PrALR; §§ 1002 sqq. ABGB; Theil 4, Cap. У, § 7 Codex Maximihaneus;