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Verhagen, Hendrick --- "Agency and Representation" [2006] ELECD 154; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 3

Section Title: Agency and Representation

Author(s): Verhagen, Hendrick

Number of pages: 24

Extract:

3 Agency and representation*
Hendrik Verhagen


1 Agency and representation
`[A]ll 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. Only in a few instances
did classical Roman law attach legal consequences to the acts of intermedi-
aries, which are to a certain extent comparable to those of direct represen-
tation (Zimmermann, 1992, pp. 47­53). Although in the ius commune (what
we now call) 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. 54­7).
The possibility that someone (the principal) may become legally bound
and entitled by the acts of someone else (the agent) is now fully recognized
in modern civil law and common law systems. The normal legal conse-
quence triggered by the mechanisms of representation and agency is that the
main operation (i. ...