Direct agency in Roman law: fact or fiction?
Direct agency has always been considered a relatively modern legal construction. But is it?
When (civil) lawyers think of agency, we think of so-called ‘direct agency’. The word agency (or representation) nowadays refers to the situation where one person (the agent), authorized by another person (the principal), enters into a contract on behalf of the latter with a third person, resulting in a contract between the principal and the third person. The agent, in other words, is not a party to the contract and is not liable to the third person. This is a relatively modern concept of agency which was probably developed in 19th century Germany. Legal historians agree that Roman private law did not recognize any such concept. The explanation for this omission is the long-standing principle that nobody can stipulate something for another person. However, this does not mean that it was impossible in the Roman empire to act through an agent. Roman law recognized several modes of agency depending on the civil status of the agent and the principal (adult or child; free-born, freedman or slave) and other circumstances. But in all these situations it was always the agent and not the principal that was party to the contract. At most, the principal could be held additionally responsible by means of a actio adiecticiae qualitatis, an additional action which was modeled after the contractual action of the third party.
But is this true? In the Decreta of the Roman jurist Paulus (D. 49.15.50, see the blog on May 18), we find the case of imperial administrator (procurator Caesaris) Valerius Patruinus. In contrast to government officials nowadays, these administrators were private agents of the emperor, and their legal relationship to the emperor was the same as the relation of a normal agent in private law (also called a procurator) to his principal. As such, they were responsible for the management of the imperial estates and could act on behalf of the emperor. In the case mentioned by Paulus, Valerius Patruinus had concluded several transactions, including the sale of an imperial vineyard, on behalf of the emperor. But according to Paulus the striking result of these actions was not a contract between Valerius Patruinus (the agent) and the third party, but a contract between the fiscus, the privy purse of the emperor, and the third party. This means that the Romans did recognize the concept of direct agency where imperial agents are concerned. The reason behind this deviation can be found in D. 1.19.1 pr: acts performed by imperial procurators are treated as if they had been performed by the emperor himself. In other words, the emperor (and only he) assumed liability for all the engagements of his procurators acting within the scope of their authority.
The concept of direct agency has a place in Roman legal theory after all. It was developed at the intersection of Roman public and private law, due to the peculiar legal position of the emperor and that of the Roman state officials who served as his private agents.