56 The Law of Obligations

related only to the acquisition of the actio directa by the third party and

not to the acquisition of an actio utilis. Throughout the centuries

lawyers attempted to find ways and means of extending whatever

approximated agency in the Digest. Friedrich-Carl von Savigny, for

instance, used the institution of nuntius to try to show that the Romans

had recognized agency;157 furthermore, he alleged that the "alteri

stipulari nemo potest" rule had been applied only to stipulations: since

stipulations no longer existed, the rule had, for all practical purposes,

been abrogated and therefore did not stand in the way of agency.158-15y

5. 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,161 and then in 17th century Roman-Dutch jurisprudence.162

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:163 "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:164 ". . . 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");165 and the principal is

157 Obligationenrecht, vol. II, § 57.

1SH Obligationenrecht, vol, II, § 56.

159 On the relationship and mutual impact of the actio de in rem verso and agency, see

Kupisch, Versionsklage, pp. 30 sqq.

It is rather surprising to see how, for instance, some of the humanists condemned

slavery as not being reconcilable with the Christian teaching, but nevertheless extensively

discussed and regarded as binding the sources of Roman law relating to the legal position of

slaves (for instance, in the present context, as one of the exceptions to "alten stipulari nemo

potest"). But see, on the other hand, Simon van Leeuwen (Censura Forensis, Pars i, Lib. II,

Cap. XII, n. 2), who argued that since slavery had been abolished, the Roman rules relating*

to acquisition through slaves had to be applied to those free persons ("famulos, et ministros

liberos homines, qui nobis operis suis inserviunt") who had taken their place.

161 Cf. analysis and references in Muller, op. cit., note 43, pp. 55 sqq.

162 Cf. De Wet, (1942) 6 THRHR 210 sqq.; D.J. Joubert, Die Suid-Afrikaanse

Verteenwoordigingsreg (1979), pp. 13 sqq.

163 Disputationes Iuris Fundamentales (Franequerae, 1688), Disp. LI, n. 9.

164 Commenterais ad Pandectas, Lib. XVII, Tit. I, IX.

165 In the same passage, Voet, incidentally, compares procurators and nuntii: ". . . quia

procuratores hodie in negotiis contrahendis considerantur magis ut nuncii." This has been

Created with novaPDF Printer (www.novaPDF.com)

Stipuiatio alteri, Agency and Cession 57

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 aut 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").166

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.167 This state of affairs is reflected in the first wave of

codifications inspired by natural law and enlightenment.1flH In the

course of the 19th century, the conceptual framework was further

refined. Brinz169 and Windscheid170 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.171 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.172 Paul Laband173 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

translated by Percival Gane (The Selective Voet, vol. I l l (1956) in the following way; ". . .

because agents are rather regarded today in making business contracts as messengers." On

that basis, Voet's opinion has been criticized in (1910) 27 SALJ 385. According to Muller,

op. cit., note 43, p. 109, Voet is saying that the agent is more than a nuntius.

166 Censura Forensis, Pars I, Lib. IV, Cap. Ill, n. 10.

167 Cf. supra, pp. 43, 45 sq., and Muller, op. cit., note 43, pp. 123 sqq. This was then also

taken over in the usus modernus, cf. e.g. Lcyscr, Meditationes ad Pandectas, Spec. DXIX; for

France, see Pothier, Traite des obligations, im. 74 sqq. For details of the development, see, in

particul ar, Coing, pp. 426 sqq., 429 sq.; Cappellini, HD, vol. 38, pp. 447 sqq.

168 Cf. § 85 I 13 PrALR; §§ 1002 sqq. ABGB; Theil 4, Cap. У, § 7 Codex Maximihaneus;