No general concept of agency in Roman law
Roman law did not know a general concept of agency. Certain situations were recognized in which persons could act through middlemen, but a comprehensive legal institution of agency was never developed.[238] [239] This, as far as the acquisition of rights through an agent is concerned, was another consequence of "per extraneam personam nihil nobis acquiri potest"?77 That, in turn, one could not incur obligations through an independent third person seems to have been so obvious that a similar rule did not even have to be formulated. For an explanation one has to look back to the formalism of the old law with its magical roots: the ceremonies connected with transactions such as mancipatio and nexum and the sacral elements of the old stipulatio seem to have necessitated performance of the formal acts in personam." That Roman lawyers clung to this principle during the more advanced stages of legal development and even applied it to the informal contracts, some of which came to be the main transactions of daily life and of commercial intercourse, provides striking evidence of their characteristic traditionalism. 10° To us, today, agency appears to be an essential device in any developed and sophisticated economy which avails itself of the advantages of a division of labour for the production and distribution processes.[240] [241] [242] How could the Romans do without it? They were, after all, a nation whose economic and social structure,[243] from about the time of the Punic wars, was no longer determined so much by agriculture as by commerce, finance and city life.[244] The answer lies partly in the structure of the Roman economic system, more particularly in the organization and functioning of the family unit; besides, the Romans used other devices which allowed them to approximate the practical effects of agency. Also, the rule regarding the exclusion of agency was not as rigidly applied as is sometimes suggested; if their traditionalism led the Roman lawyers to retain the principle,104 their pragmatism allowed for exceptions where necessary. Roman law was never conceived of and developed as a system of rigid rules, but rather from a casuistic point of view.105 3.
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