Notes on Roman Law

A mandatary was bound to give up to his mandator all rights acquired against third persons by the performance of the mandate, and permit the mandator to sue in his name. The mandatary made the contract in his own name, and the mandator would sue thereon in the name of the mandatary, and in this round about way the function of an agent was served by the mandatary. (As to agency, see generally. Hunter, 609-626; Sohm, 219-224.)

There were two special instances of a purely commercial character in which persons sui juris as well as slaves and persons under power might act practically as agents. The master or captain of a ship (magister navis) might bind the owner (exercitor) by contracts relating to the ship and its business. And a person (institor) put in charge of a shop or other business could bind his principal by contracts within the scope of the business entrusted to him. These were the only cases in which persons not slaves nor under power could act as agents, and they were agents only in a partial sense. Their contracts bound their principals, and third persons with whom they contracted could sue the principals directly on the contracts. But except in a few cases the principal could not sue the third person directly. His only remedy was against the shipmaster directly or against the manager to compel him to transfer his right of ac- tion. Moreover, unlike a true agent, the master of the...

The principal Roman substitute for agency is found in the Roman family law. The Roman law of agency may be described as an application of family law just as the English law of agency is an application or extension of the law of master and servant. It was the rule that all rights acquired by a person under the power of another (whether children in potestate , wives in manu , free persons in mancipio or slaves) belonged to the person in whose power he or she was. The usual application of the rule was to acquisitions by slaves. The praetorian law greatly limited the rights of a paterfamilias in the acquisitions of his son. The principle that whatever a slave acquired he acquired not for himself but for his master, was not truly that of agency according to the English conception of representation. The master became the owner of property acquired by the slave, and the master, not the slave, could sue on the slave's contracts, but the master acquired his rights by opera...

In the early Roman law of contracts the notion of agency was entirely lacking. Only the person who actually participated in the making of a contract was bound by it or could claim any rights under it. In later times the praetor, under the pressure of commercial necessity, created a law of agency closely resembling, in some striking examples, tjie modern law, but even down to the close of the Empire the law of agency in the modern sense was unknown to the Roman law. The Romans were very slow to grasp the principle of representation by an agent, and only in exceptional cases and in an imperfect manner was the principle recognized and applied. It may strike one with surprise that the practical-minded Romans failed to develop a branch of law so indispensable in modern business life. For this failure two reasons may be assigned : In the first place, the rule that everything acquired by a slave or by a person under power belonged to the master or paterfamilias, removed to so...