Acting for (and through) others in Roman law
(a) Indirect representation and other substitute devices
Firstly, the Romans knew, of course, what we would call indirect representation:106 the "agent" could conclude the contract (e.g.
of sale) in his own name and demand transfer of ownership to himself; he was then obliged under whatever his relationship with the "principal" might be (often a mandatum) to hand over to the "principal" whatever he received. Indirect representation is based on a iussum (or ratihabitio),107 the (informal) declaration of the "principal" to the "agent" acknowledging the results of the "agent's" acts. This "iussum" is different from the modern "authority" in that it had no "external effect": it did not give rise to a contractual relationship between the "principal" and the party with whom the "agent" contracted. Legal relationships existed only between the "principal" and "agent" on the one hand, and the "agent" and his contractual partner on the other. Thus, indirect representation is cumbersome in that it requires two legal transactions instead of only one. The "principal" is in a comparatively weak position: it is only the "agent" who can sue under the contract concluded by him; once ownership has been transferred to [245] [246] 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.[247] 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.[248] 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.[249]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).[250] 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.[251] 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.[252] This he did domini loco,[253] i.e. he was apparently regarded as having some sort of (functionally limited) title over the person and property of the ward.[254] 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 traditio or usucapio) ownership for the ward.[255] 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 rights[256] and incurred obligations[257] on behalf of the ward.[258] 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.[259] 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.[260] 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.[261] Max Kaser[262] [263] [264] 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 instruments.124 Thus, the acquisitive acts were not, as would also have been conceivable, regarded as totally ineffective or irrelevant. Where, on the other hand, the filiusfamilias or slave had incurred an obligation, the paterfamilias was not normally bound.125 In fact, the position of the creditor was very weak: slaves could not be parties to a lawsuit, and execution against children in power, as long as they did not have proprietary capacity, was excluded. In classical law these obligations against persons in power were regarded as obligationes naturales.1"[265] [266] As a result, it must have appeared unattractive and risky to contract with a filiusfamilias or a slave. Thus, in order not to stifle legal relations and business life, the praetor intervened and was prepared, under certain circumstances, to grant actiones "adiecticiae qualitatis1,127 against the paterfamilias. The common denominator of most of these actions was a (tacit or express, general or specific) authority given to the person in power to act on behalf of the paterfamilias. This is particularly obvious in the case of the actio quod iussu,[267] where an express (formless) authority even had to have been communicated to the party with whom the person in power was about to contract, but it also applied to the actio de peculio, [268] where the son in power or the slave had been given a peculium (the paterfamilias was then liable for all commercial debts incurred up to the value of the peculium at the time of condemnation); to the actio exercitoria,[269] 0 which lay against the exercitor navis for commercial debts incurred (within the terms of the so-called "praepositio")[270] by his magister navis, and to the actio institoria,[271]' which was available against an employer for commercial debts incurred (again: within the terms of the praepositio) by an employee who had been put in charge of a taberna or some other negotiatio.[272] Besides these, an actio de in rem verso[273] was available if the person in power had used what he had acquired under the contract to enrich the property of his paterfamilias. The most interesting of these remedies in the present context were the actiones exercitoria and institoria because they were granted irrespective of whether or not the exercitor navis or institor was a person in power.[274] Thus, we are dealing here with instances where a freeman was able to obligate a third party who had authorized him to do business on his behalf. This approximated agency. However, magister navis and institor were and remained the parties to the contract which had been concluded; the liability was extended only to the exercitor navis/employer, who could now be sued in solidum.[275] Also, these "principals" were sometimes granted the contractual actions of their "agents" against the other party as actiones utiles.[276] (c) Procuratio Sixthly, attention has to be drawn to the institution of procuratio.[277] Wealthy people used to have a procurator omnium bonorum to look after and administer their property. In pre-classical times they would appoint to this position one of their own freedmen who had been specifically trained for the job and who, on account of the patronal power, was still very much dependent upon his (former) master even after manumissio had taken place. Later on, this power gradually dwindled and the freedman was increasingly regarded as a legally independent person (with the effect that reciprocal claims between procurator and principal became possible); also, freeborn persons were now employed as procuratores. As with tutors, procurators could acquire possession and (through the acquisition of possession) ownership for the principal.[278] As in the case of the institor and the magister navis, contractual rights acquired by the procurator were also granted to the principal as actiones utiles.[279] Eventually, Papinian also made the principal liable for the debts incurred by the procurator in connection with the range of activities for which he was appointed: he advocated an analogous application of the actio institoria to the free procurator as actio ad exemplum institoriae actionis.[280] Finally, exceptions to the rule against agency were admitted with regard to certain honorarian obligations (precarium, receptum nau- tarum, etc.).[281] Another rule is probably attributable to Greek influence: if somebody gave a loan on behalf of another person, the action against the borrower to reclaim what had been handed over (the "condictio") was granted to that other person.[282] Very liberal rules were applied in the cognitio extra ordinem procedure.[283] 4.
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