- Elgar original reference
Edited by Jan M. Smits
‘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.220.127.116.11), 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).
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.