§ 45. every day and purchase the daily provisions himself. The conclusion of the juristic act is, in this case, prevented by physical reasons. If I desire to conclude a juristic act on my own behalf, but am prevented by purely physical reasons, I may frequently avail myself of the services of a messenger. The messenger serves precisely the same purpose as a letter, the purpose, namely, of overcoming the external obstacle of distance. He makes the journey instead of me, but it is I myself who conclude the juristic act. It is I who have formed a definite intention, and the messenger is merely the medium through which I express that intention; he is only the instrument by which I myself conclude the juristic act. Suppose, however, that in employing another to do business for me, I have no intention of concluding the transaction myself. In that case, I shall give the other person authority to act on my behalf, to act in my name. If I own a business, I shall appoint a manager to act for me in the shop; if I am an inn-keeper, I shall appoint a waiter to attend to the guests in my place. My intention is that the negotiations conducted with the person whom I have authorized to act in my stead, shall decide the result, and shall be regarded in the same way as though they had been carried on by myself on my own behalf. The authorized representative is not merely to save me the journey, but is to conclude the juristic act for me. He is to weigh all the circumstances. The decision, the exertion of the will by virtue of which the juristic act is concluded, is his, not mine. Such is the true nature of representation. A messenger is merely a conduit-pipe for conveying my will; a representative is a person who wills instead of me. Representation, then, is the conclusion of a juristic act by one person acting for another; in short, the conclusion of a juristic act in the name of another. It is obvious that a mere messenger would be of little use to a person who is himself legally incapable of concluding juristic acts (e. g. a lunatic, infans, impubes). Such a person must therefore necessarily act through a representative. Representation thus occurs in two classes of cases: first, in cases where a person is prevented by law from acting himself, so that representation becomes a matter of legal necessity; secondly, in cases where a person is prevented merely by physical reasons from § 45. acting himself, where therefore representation is due to the voluntary act of the person represented. The former kind of representation has its type in the representation of a ward by his guardian and may accordingly be called 'tutorial representation.' The other kind of representation we will call 'procuratorial representation,' or 'agency' simply. The German Civil Code speaks in the first case of representation by a 'statutory representative' ('gesetzlicher Vertreter '), in the second case of representation by an 'authorized agent' ('Bevollmächtigter'). Roman law was very slow to recognize the idea of representation, and the sphere within which it was applied remained throughout a restricted one. In cases of tutorial' and 'procuratorial' representation alike, Roman law adhered to the rule that a juristic act could only be concluded by a person in his own name, thus refusing on principle to admit the idea of representation at all. If an agent or guardian had occasion to act in lieu of his principal or ward, Roman law required him to conclude the juristic act—say, a contract of sale ---for himself, the person represented remaining undisclosed, so far as the other party was concerned (infra, p. 234). During the Empire, however, a significant exception to this rule came to be recognized. Wherever the acquisition of possession and of such other rights— more particularly the right of ownership—as are acquired through the medium of possession was concerned, the principle of representation was admitted. Anything acquired by a procurator (i. e. a freely chosen representative) in the name of his principal or by a guardian in the name of his ward, passed directly into the ownership of the principal or ward'. As regards contracts, however, the rule remained unaltered; that is to say, it continued to be held that contractual rights and liabilities could only accrue to the contracting party himself, and that contracts could not be validly concluded in the name of a third party 2. This rule constitutes a most important point of difference between Roman and modern law. 1 Cp. Lenel, in Jhering's Jahrbücher, vol. xxxvi. p. 89. 2 This rule applied to a guardian just as much as it did to a procurator; cp. $ 45. In modern systems of law both forms of representation-that which is necessitated by the law itself and that which is due to the voluntary act of a party-are, on principle, admissible in all transactions of private law. The juristic act is, in such cases, concluded by the agent, acting on behalf of another; in other words, as far as its conclusion is concerned (i. e. as far as the act of the will is concerned by means of which it comes into existence), the juristic act is the act of the agent. But as far as its effects are concerned—and in modern law this is the universal rule-the act operates not to the advantage or disadvantage of the agent, but of the principal, the 'dominus negotii.' In a word, the act is, in point of legal effect, the act of the principal. The relevant provisions of the German Civil Code are, of course, based on these modern ideas of representation, the principle adopted being that of 'direct representation,' according to which the acts of the representative operate to confer rights and impose duties directly on the principal. The principles of representation have no application, unless the circumstances are such as to enable the party, with whom the agreement is made, to know that the other is merely acting in a representative capacity. It is therefore only where the representative (whether guardian or procurator) acts as such, only, that is, where the representative expressly avows himself the agent of a third party who is the person really concerned in the transaction (the dominus negotii), or else where the circumstances themselves show clearly enough that he must be acting as an agent,-only then do the rights and liabilities under the transaction accrue, not to the representative, but to the dominus negotii. The transaction must, in other words, be concluded in such a way as to show clearly that it was intended to be concluded in the name of the dominus negotii, as would be the case, for example, with a contract made by a waiter in an inn, or by a shop assistant in a shop. The principles of representation have, therefore, berger for drawing his attention to this (14, 1); Mitteis, ZS. d. Sav. St., vol. xix. p. 200. So far, of course, as they operate at all; in Roman law, therefore, subject always to the limitations indicated above. no application except in those cases where the principal is disclosed, § 45. i. e. in those cases where the other party knows, or might reasonably know, that the person he is dealing with is merely a representative. On the other hand, where a person (whether guardian or another), though really acting on behalf of (i.e. on account of) a principal, does nothing to show that he is so acting, but purports to be acting suo nomine, leaving his principal undisclosed-in such a case there is legally no agency at all, and neither in Roman nor in modern law would the principles of representation come into play. If an agent leaves his principal undisclosed-as where a friend buys stamps for me at the post office-the effects of the act he concludes operate to the advantage or otherwise of himself, and not of the dominus negotii. A second juristic act is necessary for the purpose of assigning the effect of the first (e. g. the acquisition of ownership) to the dominus negotii. Secret representation is, therefore, no true representation at all. Again, what is called 'involuntary representation,' i. e. that form of representation under which the acquisitions of the slave or filiusfamilias pass by the necessary operation of law to the dominus and paterfamilias respectively-it has disappeared from modern systems of law-is, strictly speaking, no representation at all (supra, pp. 172, 185). The juristic act concluded by a son or slave operates, on principle, to the advantage, and never to the prejudice of the superior. Thus, on principle, the superior incurs no liability on a loan contracted by the son or slave, though he becomes owner of the money received. In other words, there is but a partial operation of the principles of representation. It is only on certain other specific conditions that the superior becomes subject to the liabilities, as he is entitled to the benefits arising from a transaction concluded by his son or slave (§ 88). And it is moreover to be observed that acquisitions of a son or slave pass by operation of law to the father or dominus quite regardless of the fact whether the former were acting in their own name or in that of their superior, or again whether they were authorized to act or not. The rules on representation can have no application to a relationship of this kind. II. THE PROTECTION OF RIGHTS. (LAW OF PROCEDURE.) $ 46. § 46. Introduction. No man need submit to being forcibly and without authority deprived of what belongs to him. In repelling an unlawful attack on his property, he is merely protecting his right by his own force. This kind of force, or, as it may be called, self-defence is permissible : vim vi repellere licet. Self-defence involves, in fact, the exercise of a right-a forcible exercise, it is true, but still the exercise of a right -and is therefore lawful: qui jure suo utitur, neminem laedit. But it is a different matter, if the violation of the right is past and complete. It is then not a question of preventing, but of redressing the violation of a right which has already taken place, of coercing the will of an opponent who is in actual possession; in a word, it is a question of executing the law. In this case private force, or selfhelp, is not allowable. To attempt to obtain redress by means of your own strength, would be, not as in the first case, to exercise, but to transgress, the private right which has been infringed, because private law only confers rights of dominion over things, or-in the case of family rights-over persons in a condition of partial dependence (supra, pp. 26, 163), and never confers any direct power over the free will of an independent person. To coerce a free person offering resistance to the law, in other words, to execute the law, is, in classical Roman law as well as in modern law, reserved for the state. Once a right has been definitely infringed, there is only one way of securing an execution of the law, and that is by invoking the power of the state, in short, by bringing an action at law. Obligatory rights have this peculiarity that, prior to the fulfilment of the obligation, the creditor can never be said to be exercising his |