APPENDIX I. THE RELATION OF THE CONTRACTUAL ACTIONS ADIECTITIAE QUALITATIS TO THE THEORY OF REPRESENTATION.

These praetorian actions appear to be a partial correction of what looks like a glaring injustice^[2513]. By the civil law a dominus acquired freely through his slave, but was in no way liable on his transactions.

Doubtless the injustice had not been so great as it might appear, for in earlier law the slave was not the important instrument of commerce he afterwards became. Moreover in sale to a slave the ownership did not pass till the price was paid, so that the vendor could recover the thing by mndicatio, while thè dominus could not enforce the completion of an unfulfilled undertaking to the slave without tendering what was due². In fact a well-known analogous case suggests that the difficulty was the other way. When the lex Plaetoria allowed minors to set aside their agreements the result was that no one would deal with them³. Here, also, this may well have been the real diffiВculty : if any commercial use was to be made of slaves, a remedy against the dominus was essential⁴. So soon as these actions were evolved the slave became a much more useful person. He may be said to have fulfilled much the same function as the modern limited liability company. A person who has money to invest, and does not himself want to engage in trade, can invest his money in shares in such a concern. He runs a certain risk but he knows exactly how much he can lose. The slave owner in entrusting the slave with a peculium does much the same thing : his position is in one respect better since, if things are going wrong, he can always put a stop to further losses by withdrawing the peculium. It is not always possible to sell shares.

Whichever side suffered, and however the injustice may have been limited, these actions may be regarded as progressive stages in the adjustment of the matter. The Romans never reached any comprehensive principle which would cover all cases.

It cannot even be said with certainty that any one principle underlies all these actions. It is not possible to be sure how the Praetor and his advisers looked at the matter, what need, exactly, he set himself to satisfy, what considerations would be most likely to define his rules, and what analogies would be likely to present themselves to his mind. For modems the matter is simple ; the notion of representation can easily be made to cover the whole ground. But it is not easy to apply this to the classical law of Rome. As has been said by Mitteis¹ our law is so saturated by the conception of representation in contract that we find it difficult to admit a legal system which ignores it. Yet it is common knowledge that the classical law did not admit of representation, to create liability in contract, at least (to beg no question), apart from these actions. Nevertheless, the opinions held by modern commentators on them make a constant appeal to this principle. No doubt all notion of representation is not to be summarily rejected. But in view of the intensely personal nature of obligation in Roman law, evidenced by a number of limitations which modern law rejectsвЂ™, it is difficult to believe that the Romans built up these actions on any theory of representation, and still more so to suppose that that theory was the one held in any particular modern system. This last point is not unimportant. In relation to the aciio institoria, Karlowa remarksвЂ™ that the fact of the appointment must be known to the third party, as an unknown principal could have no juristic importance. This consideration would not be conВvincing to one who was familiar with the English law as to the rights and liabilities of an undisclosed principal.

As we have seen^[2514] ^{^[2515] ^[2516] ^[2517] it is almost universally held that in the actio quod iussu the iussum must have been in some way published to the third party. The texts indeed are far from proving this.}

They suggest that this was, as it would naturally be, the common case, but no more. But modern law usually requires⁵ that, for the third party to have an action against the principal, there must have been some form of notice that he was in the background, and this has at least helped in the acceptance of that requireВment for Roman law. Yet, as we saw in discussing the action, there is no presumption to be drawn from analogous cases in favour of this view. The fact is that the rules of the action are based on the words of the relative edict, interpreted in the light of current habits of thought. There was no theory of representation to be utilised. Notice would not make it more or less reasonable that a contract between A and B should bind C. And if the analogy of acquisition of iura in rem involving liabilities had occurred to the jurists it might have led them to the idea of notice to the person liable, but not to that of notice to the person claiming⁸.

In relation to the actio institoria and the actio exercitoria there is a similar tendency. The question whether notice of the appointment was necessary had, it appears, some importance in modern German law till the enactment of the new Code, for, if notice was necessary, the rule went no further than that of the Handelsgesetzbuch which had within its field superseded the Roman law. But if the third party could sue though he had made the contract in ignorance of the praepositio, the rule still existed and might be applied in German courts. Accordingly there has been controversy. But the dominant view has been that the contract must have been made in view of the praeВpositio. We have already seen that there is no warrant in the texts for that¹ : this is indeed usually admitted, and though texts are freely cited they are always reinforced by fixed juristic principles which in the view of the writer compel this conclusion. Thus, Lenel, who states the edict in terms which do not seem to express any such requirementвЂњ, discusses the matter elseВwhereвЂњ, and proceeds to set and to answer the question : did this praetorian action assume a state of facts in which a modern lawyer would see agency 1 He holds, no doubt correctly, that the edict says вЂњ cum institore gestum erit eius rei nomine cui praepositus fueritвЂќ and infers that the third person must therefore have known of the praepositio.

But at most the words only shew that he must have known of the business not of the praepositio, and this is a different matter. After discussing some other texts, already considered, he goes on to say that general considerations lead him to the conclusion that notice was necessary⁴. We must consider, he urges, the need the Praetor was satisfying, the existing practice to which he was giving a legal sanction. He says that masters were in the habit of honouring such contracts in certain cases, and those cases were what the Praetor protected. These, he says, were the cases in which the third party knew that the affair concerned the principal, for it was only in that case that failure to honour the contract would affect the principalвЂ™s credit, and thus only in that case that he had been in the habit of honouring the contract. This conjectural argument is imperfect, since the failure to honour the contract would affect the credit of the business, whether it was known to belong to him or not Lenel goes on to say that to require only objective connexion would be to create an imposВsibly wide extension of the actio de in rem verso, but this contention, like the former, only goes to shew that the third person must know that the affair concerned the business, not that he must know that behind the actual dealer there was a principal or, still less, an identified principal. And this last is what at the beginning of his article he sets out to prove. Indeed he seems to regard the points as the same, but it is clear that this is not the case⁴.

DernburgвЂњ thinks the requirement rests on the вЂњ Wesen der Sache,вЂќ since one who does not know of the agency trusts the agent, and there is no reason for giving him an advantage he did not contemplate when he made the contract. Doubtless there is some reason in this if we think of the matter in terms of agency (though our English law ignores the point), but that is precisely what we are not entitled to do.

In fact in such a case what the third party trusts is the show of capital. Karlowa, besides making the same assimilation of the trade with the praepositio^[2518], says that the principal, standВing behind, of whom the third party knows nothing, could have no juristic importance. Mitteis² does not confuse the two kinds of knowledge, but, admitting the uncertainty of the texts, concludes that knowledge is necessary, because subsequent discovery that there is a principal behind ought not to benefit the third person. For the present purpose all these positions are substantially the same.

Among the vexed questions arising in connexion with the actio de in rem verso there are two which raise a similar point. Will the action lie only where a free man would have an action on ffestiot Must the third party have handed over the property in view of the intended versio 1 These have been fully discussed³. Here it is enough to say that the widely held affirmaВtive opinions rest in the main not on the texts but on a certain modern theory of representation.

All this seems somewhat misleading: it is not in the law of agency that we must expect to find the hints which will help us to solve the question. No doubt it is practical needs that have created the law of agency on the lines followed in most continental systems, but in view of our English practice these cannot be called so inevitable that no other lines can be imagined. It must not be forgotten that the actio de peculio is the original one of these actions, and it may fairly be regarded as in a certain sense supplying the type, but there is scarcely a principle of the law of agency which this action does not defy. We are told indeed that the other party contracts in view of the peculium'. But the action lies even though the contract (or all contracts) were prohibited by the dominus to the knowВledge of the other party ⁵. It lies against a master who acquired the slave only after the contract and who knew nothing of it⁶.

It appears even that it lies though the contract was made even before there was a peculium⁷. No doubt these rules were gradually reached⁸, but so, in view of the words of the Edict, must those have been which are attributed to the other actions. It is not easy to see why in one case the liability should have been steadily widened while in the other it was being artificially narrowed. No doubt it might be contended that it was precisely the limitations set on these actions which called for an extensive interpretation of the Edict de peculio. But while this hypothesis might fairly be used to explain a divergence of practice apparent on the texts, it is a different and less legitimate course to use it as evidence of a divergence which the sources nowhere indicate. Indeed the supposed narrow interpretation is negatived by the texts. If the right of the third party rests, in the actio institoria, on the knowledge of the authorisation, it is difficult to see how the rule is arrived at that he has the action even though the principal was to the third partyвЂ™s knowledge dead when the contract was made*. The actions de in rem verso and de peculio are one: why should it be supposed to have embodied such a notion as nepotii gestio in the one case, while in the other it excluded it so completely that, to prevent enforcement against the master of obligations utterly opposed to any possible interest of his, it was necessary to fall back on the view that the Praetor could not have been thinking of such contracts *.

With regard to the actio institoria the views that are here combated start, rightly, from the principle that in interpreting the scanty words of the Edict it is necessary to consider what the need was that the Praetor set himself to satisfy. But in considering this question the writers above cited seem to treat it as equivalent to another question: what might the third party reasonably expect! What were his moral rights! They consider, indeed, another question also: what did the commercial interests of the principal require! But this is the same question : it is his interest for the credit of the business to satisfy the reasonable expectations of the third party. How will the matter stand if we formulate our question in another way and ask : what risks should a master who provides his servant with the means of trading, and gives him his authority to trade, be reasonably expected to undertake! To the question so stated a very different answer is possible. We may notice that in the actio tributoria where there is scientia but no authority the liability of the master is a little increased, and the increased liability is due to his knowledge, and not to any knowledge of the facts by the creditor³. It is clear that the extension depends on a conception of the masterвЂ™s duty rather than of the creditorвЂ™s right. Similarly in English law a principal is liable on a contract made by his authorised agent though the agent did not disclose the fact that there was a principal. In the same way it seems most probable that in the actio institoria, where there was general authority and provision of capital, as opposed to mere scientia, the liability of the master in solidum was independent of the creditorвЂ™s knowledge of the factsвЂ™. This is also the conclusion that we considered to be indicated by the texts, as we did also in the actio quod iussu, where there was authorisaВtion of a specific contract.

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Source: Buckland W.W.. The Roman Law of Slavery. Cambridge University Press 1908, repr.1970. вЂ” 754 p.. 1970

APPENDIX I. THE RELATION OF THE CONTRACTUAL ACTIONS ADIECTITIAE QUALITATIS TO THE THEORY OF REPRESENTATION.

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