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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