Primitive prohibition of direct representation in Roman law scholarship : origins, sources and flaws

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.