Primitive prohibition of direct representation in Roman law scholarship : origins, sources and flaws
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Date
2017
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Abstract
Roman law scholars since the nineteenth century have claimed that Roman law
originally banned any form of direct representation, and that only through juristic
innovations was this general prohibition of the ius civile partially overcome. Such
theory was built on the assumption that some texts found in classical jurisprudence
were manifestations of a general principle that inspired early Roman law. However,
modern scholars have discarded many of the assumptions on which this theory was
built, granting a much more limited scope to the texts which restrict the possibility to
act on behalf of someone else. Moreover, the sources show that early legal institutions
did not exclude agency-like figures, and that Roman jurists resorted to different
criteria to determine whether the principal was affected by his agent depending on
the particular legal act that was performed, for example the conclusion of a contract,
the transfer of ownership, payment, acquisition of possession, etcetera. Accordingly,
legal historians should avoid approaching the Roman sources through the notion
of “direct representation”. A piece-meal approach serves to understand when and
under which conditions Roman jurists enabled an agent to affect the legal position
of the dominus negotii.
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Keywords
Direct representation, Agency, Voluntas domini, Nuntius