The evolution of the modern concept of agency
By this time, however, despite all the theoretical disputes, the institution of agency was firmly entrenched in practice. The needs of the expanding commerce had, since the Middle Ages, been the most important impetus for the recognition of this device; also, the changes in economic, political and social structures1611 somehow had to be accommodated.
It is therefore hardly surprising to find the "alteri stipulari nemo potest" principle already abandoned in the statutes of the upper Italian city states, those early centres of flourishing trade and commerce,[300] and then in 17th century Roman-Dutch jurisprudence.[301] Even though the Dutch authors did not yet distinguish between agency and stipulatio alteri, they carved out and emphasized some aspects which to us are of fundamental importance for the law of agency today: the agent's acts directly bind the principal (Ulrich Huber:[302] "Moribus hodiernis ut obligatio immediate per ahum cui mandatum dedimus in nos transit, ita nee dubium est"); the agent must have acted in the name of the principal (Johannes Voet:[303].. quas (actiones] tarnen nostris moribus cedi haud opus, quoties mandatarium non suo, sed mandantis nomine contraxisse expressum est;... si suo nomine procurator contraxerit, cessionem actiones fieri necesse est");[304] and the principal is not only an additional debtor but he is liable in the place of the agent (Simon van Leeuwen: "A quibus tamen moribus nostris in tantum receditur, ut non in institores ant praepositos directa detur actio, sed adversus ipsos Dominos praeponentes agi debeat, qui institorum nomine tenentur, nisi cum us sit actum quos institores aut praepositos suos negant").[305]Whilst the writers of the Dutchjurisprudence, and later on also of the German usus modernus pandectarum, argued from the point of view of commercial practice and the mores hodierni, it was left to the natural lawyers (who subjected Roman law to criticism from the point of view of natural justice) to break away decisively from the principle of "alteri stipulari nemo potest" and to lay the conceptual cornerstones for the future.[306] [307] This state of affairs is reflected in the first wave of codifications inspired by natural law and enlightenment.11111 In the course of the 19th century, the conceptual framework was further refined. Brinz[308] and Windscheid[309] firmly established the so-called representation theory: it is the agent's will (not the principal's as expressed through the agent) that is necessary for the conclusion of the contract. Thus, the agent is not to be regarded as some sort of juristic organ through which the principal acts.[310] As a consequence of this perspective, the requirements for the validity of the contract concluded through the agent (as, for instance, whether there was fraud, duress or error) have to bejudged with a view to the person of the agent, not the principal.[311] Paul Laband[312] eventually introduced the conceptual distinction between the grant of authority and the legal relationship giving rise to it (mandate). This became known as the doctrine of abstraction in agency,[313] on which the BGB and most subsequent codifications of private law around the world are based.[314] Whilst the mandate relates to the (internal) relationship between principal and agent, the grant of authority determines the (external) relationship between the principal and the other party with whom the agent concludes the contract. Both acts are independent of each other: there can be a mandate without grant of authority, just as it is possible to have a grant of authority without mandate. Not much differently, English law distinguishes between agency as a contract engendering rights and duties and as a transfer of authority;[315] it does not, however, put this insight to any systematic use.[316] In modern Roman-Dutch law, the concept of authorization as an abstract (unilateral) juristic act[317] is still vying with the traditional view of agency as one of the specific contracts ("mandat"), namely "un acte par lequel une personne dome une autre le pouvoir defaire quelque chose pour le mandant et en son nom".[318]
More on the topic The evolution of the modern concept of agency:
- No general concept of agency in Roman law
- The evolution of the modern contract in favour of a third party
- D. 47, 2, 1, 3 and the modern German concept compared
- The history of the modern concept of theft
- Alike Harlan’s vision, it is important to understand the relational character of agricultural evolution, defined as ‘the activities of man that have shaped the evolution of crops and [...] the influences of crops in shaping the evolution of human societies’ (Harlan, 1975: 3).
- The concept, sketched in the preceding chapter, of the obligatio as being a strictly personal bond between the two parties who had concluded the contract found highly characteristic expression in the fact that Roman law did not recognize contracts in favour of third parties, (direct) agency and the cession of rights.
- A concept of legal validity that leaves out the elements of social efficacy and correctness of content was classified above as a concept of legal validity in a narrower sense.
- 12.4 ENTREPRENEURSHIP AND AGENCY
- The erosion of the rule against agency
- Structure and agency: towards a dialectical approach
- Co-evolution of Roman Law and Economy
- AGENCY
- TUTORSHIP AND AGENCY
- Mandatum (Mandate, Commission or Agency)
- Stipulatio alteri, Agency and Cession
- 2 Mechanisms of Legal Evolution
- 1 Co-evolution of Law and Economy
- Evolution of the contract of societas