The erosion of the rule against agency
Thus far we have been looking at classical law. West-Roman vulgar law[284] brought about considerable changes and some (dogmatically and conceptually crude) advancement towards the recognition of agency.
That was due partly to certain transformations in the legal position of those persons who were used to act on behalf of others, partly to a lack of comprehension and appreciation of the formalistic inhibitions that had prevented the lawyers in earlier times from allowing extranei to act for each other. East-Roman classicism, however, frowned upon these developments and went back to the classical rules. Only in some minor respects did Justinian advance and consolidate the position.[285] [286] Merely on the basis of the Corpus Juris Civilis, it was therefore hardly possible in later ages to argue for the general recognition of agency. "Generale est, ex alterius stipulatione alteri accionem non queri",14 had to be the general principle at times when Roman law enjoyed supreme authority.[287] Even canon law, in accordance with "ecclesia vivit lege Romana",[288] did not abandon the principle of "alteri stipulari nemo potest",[289] although the Church clearly favoured representation as an essential element of Christian life and belief.[290] Down to the 19th century there were legal writers who regarded it as irreconcilable with the nature of an obligation for a contractual right to arise directly in the person of a third party. The "principal" (mandator) could acquire that right only through a cession by the "agent" (mandatary).[291]On the other hand, of course, the scene was set for a gradual erosion of the rule against agency. Already the commentators formed stratagems to bypass it under certain circumstances: they argued, for instance, that an actio utilis should be granted to the principal in all the cases where the actio directa could not be ceded.[292] 3 Also, one finds attempts to water down the relevance of the procurator's, magister navis's and institutor's obligation: with the termination of their office it would fall away.[293] According to Martinus Gosia[294] (whose opinion, however, did not gain acceptance)[295] the prohibition of Roman law related only to the acquisition of the actio directa by the third party and not to the acquisition of an actio utilis.
Throughout the centuries lawyers attempted to find ways and means of extending whatever approximated agency in the Digest. Friedrich-Carl von Savigny, for instance, used the institution of nuntius to try to show that the Romans had recognized agency;[296] furthermore, he alleged that the "alteri stipulari nemo potest" rule had been applied only to stipulations: since stipulations no longer existed, the rule had, for all practical purposes, been abrogated and therefore did not stand in the way of agency. [297] [298] [299]-15y5.
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