Representation

Modern legal systems recognize that a person may enter into a juristic act by means of an agent or a representative. Where a person enters into a contract with a third party through a representative, the contract exists between the principal and the third party while the representative merely fulfils the role of an instrument of the principal.

In Roman law the position was entirely different as representation in legal acts was, in principle, not recognized. From the earliest times the principle that prevailed was that a juristic act was a strictly personal affair that could only have legal effect with regard to those participating in it.^{^[641]}^{^[642]} However, as early as the republican era and as a result of the expansion of commercial transactions a number of exceptions to this principle were recognized mainly for reasons of necessity and utility.

As noted in the chapter on the law of persons, since an early period persons in potestate (such as the slave or filiusfamilias) could act as representatives of the dominus or paterfamilias, insofar as everything they acquired immediately became the property of the dominus or paterfamilias. This applied irrespective of whether such persons contracted in their own name or in the name of the dominus or paterfamilias?² This situation was confirmed by the fact that a third party who had entered into a legal act with a slave or a filiusfamilias could sue the dominus or paterfamilias directly in respect of the obligation incurred by the slave or son in power.^{^[643]} The relevant actions the third party could use in such a case were the so-called actiones adiecticiae qualitatis.^{^[644]} Among the most important of these praetorian actions were the actio de peculio, the actio de in rem verso and the actio quod iussu.

The actio de peculio could be employed where property in the form of money or goods (peculium) had been given to a slave or filiusfamilias to use and to trade with in dealings.

The peculium remained the property of the dominus or paterfamilias, who could be held liable for all debts arising from the commercial dealings of the dependant. However, the extent of liability in such cases was restricted to the maximum value of the peculium at the time of judgment.^{^[645]} In calculating the value of the peculium any amount which the dominus or paterfamilias owed to the peculium or which was owed to him by the dependant was taken into consideration.^{^[646]}

Where a slave or filiusfamilias, whether or not he had a peculium, had entered into a juristic act that entailed benefit to the estate of the dominus or paterfamilias, third parties could sue the dominus or paterfamilias with the actio de in rem verso for the amount by which he had been enriched.^{^[647]} As a true enrichment action, the actio de in rem verso was based on the principle that no one should be unjustifiably enriched at the expense of another person.^{^[648]} A combination of this action with the actio de peculio mentioned above was also feasible.

The actio quod iussu lay against a dominus or paterfamilias who had granted authorization (iussum) for the conclusion of a transaction between his slave or filiusfamilias and a third person, or who had subsequently ratified such transaction.^{^[649]} The dominus or paterfamilias was held liable in full (in solidum) for obligations undertaken within the limits of the authorization.^{^[650]}

Two further actions in this category were the actio institoria and the actio exercitoria. The former action could be directed against a dominus or paterfamilias who appointed his slave, son or an independent free person as manager of a business (institor). In such a case the dominus or paterfamilias could be held liable in full (in solidum) for obligations incurred by the manager within the scope of the business.

Similarly, where a dominus or paterfamilias appointed his slave, son or an independent free person as captain of a ship, he was liable for the debts incurred by the captain in the exercise of his activities. In this case the dominus or paterfamilias was referred to as exercitor and the relevant action was termed actio exercitorial

Another form of representation originated in the law of procedure where a party to a lawsuit could use a cognitor or procurator to act on his behalf.^{^[651]}^{^[652]}In classical law it became customary for a person to appoint a representative to administer his estate as a general agent (procurator omnium bonorum) or to manage only one specific affair (procurator unius rei).^{^{New Roman",serif;color:black'>[653]}} Such procurator could even acquire ownership and possession on behalf of his principal, and by the time of Justinian’s reign this right was extended to a wide range of legal acts.^{^[654]}

Furthermore, the tutor and curator^{^[655]} were in classical law allowed to acquire ownership and possession for persons under guardianship or curatorship while in the law of Justinian these persons could acquire any rights for the ward.^{^[656]}

Finally, a form of indirect representation occurred in the context of the contract of mandatum, where the mandator had directed the mandatary to assume an obligation by entering into a legal relationship with a third party. In such case the obligation arose between the third party and the mandatary rather than between the third party and the mandator. Nevertheless, the mandator had to accept performance and assume the rights properly incurred on his behalf as well as indemnify the mandatary against any obligation that might arise from the legal relationship.^{^[657]}

4.3.7

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Representation

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