3. Acting for (and through) others in Roman law

(a) Indirect representation and other substitute devices

Firstly, the Romans knew, of course, what we would call indirect

representation:106 the "agent" could conclude the contract (e.g. of sale)

in his own name and demand transfer of ownership to himself; he was

then obliged under whatever his relationship with the "principal"

might be (often a mandatum) to hand over to the "principal" whatever

he received. Indirect representation is based on a iussum (or

ratihabitio),107 the (informal) declaration of the "principal" to the

"agent" acknowledging the results of the "agent's" acts. This "iussum"

is different from the modern "authority" in that it had no "external

effect": it did not give rise to a contractual relationship between the

"principal" and the party with whom the "agent" contracted. Legal

relationships existed only between the "principal" and "agent" on the

one hand, and the "agent" and his contractual partner on the other.

Thus, indirect representation is cumbersome in that it requires two

legal transactions instead of only one. The "principal" is in a

comparatively weak position: it is only the "agent" who can sue under

the contract concluded by him; once ownership has been transferred to

104 But cf. W.M. Gordon, "Agency and Roman Law", in: Studi in onore di Cesare

San?lippo, vol. Ill (1983), pp. 341 sqq., who argues that "Roman law gradually reached a

position where the advantage of going further was more theoretical than practical and

Roman law reached this situation in a way which gave practical results which were in certain

respects preferable to those which would follow from the adoption of direct agency"

(p. 343). For a critical evaluation of the traditional opinion, see also Quadrato, ED, vol. 38,

pp. 417 sqq. H>s Cf. esp. Max Kaser, "Zur Methode der romischen Rechtsfindung", in: Ausgewahlte

Schriften, vol. I (1976), pp. 3 sqq. 10 The institutions of buying commission and commission for sale are modern examples

of indirect agency. They are based on the desire to make use of independent entrepreneurs

at foreign trading centres and on the preference of the buyers or sellers at these foreign

trading centres to contract with the representative on the spot rather than with some

unfamiliar and far-off principal. Transactions through commission agents were very popular

in the 19th century; owing to the modern means of transport and communication their

importance has decreased considerably, cf. Karsten Schmidt, Handelsrecht (3rd ed., 1987),

pp. 762 sqq. Agency, for the fathers of the BGB, meant "direct agency" (cf. supra, p. 46);

they regarded (rules about) indirect agency as obsolete and dispensable. Time has shown that

this attitude was too rigid; the need for indirect agency in certain circumstances has had to

be accommodated by the courts (cf., for example, the Geschaft fur den, den es angeht

(transaction for whom it concerns), on which, see Karl August Bettermann, Vom

stellvertretenden Handeln (1937), pp. 90 sqq.; Klaus Muller, "Das Geschaft fur den, den es

angeht", 1982 Juristenzeitung 777 sqq.). As far as Roman law is concerned, the importance

of indirect agency as a satisfactory alternative to direct agency is stressed by Gordon, Studi

Sanfilippo, vol. Ill, pp. 344 sqq. 1 7 Ratihabitio is subsequent assent; cf., for instance, Ulp. D. 46, 8, 12, 1; 3, 5, 5, 11. On

the theory and history of ratification in the law of agency, see Gualtiero Procaccia, (1978-79)

4 Tel Aviv University Studies in Law 9 sqq.

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