Verhagen, Hendrik; Macgregor, Laura --- "Agency and representation*" [2012] ELECD 965; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law, Second Edition" (Edward Elgar Publishing, 2012) 37

Book Title: Elgar Encyclopedia of Comparative Law, Second Edition

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804158

Section: Chapter 3

Section Title: Agency and representation*

Author(s): Verhagen, Hendrik; Macgregor, Laura

Number of pages: 28

Abstract/Description:

‘All legal systems today accept the conclusion of contracts through the medium of agents who bind their principal and acquire legal rights for him’ (Müller-Freienfels, 1982, p. 280). This has not always been the case. Classical Roman law never developed a general concept of representation. The personal nature of obligations, reflected in the maxim ‘alteri stipulari nemo potest’ (D.45.1.38.17), prevented the recognition of representation as an autonomous legal category. The contract of mandatum, which later became the vehicle for representation in the civil law, did not entail a power for the mandatary to bind and entitle his principal. Most commercial activities were carried out through slaves, who could (under certain conditions) bind and entitle their masters (Miceli, 2009). Only in a few instances did classical Roman law attach legal consequences to the acts of free persons acting as intermediaries, which are to a certain extent comparable to those of (what we now call) direct representation (Zimmermann, 1992, pp. 47–53). Although in the ius commune direct representation became more and more accepted, ‘it was left to the natural lawyers ... to break away decisively from the principle of “alteri stipulari nemo potest” and to lay the conceptual cornerstones for the future’ (ibid., pp. 54–7).