Comparative law analysis
Differentiation between contractual obligations and power of attorney
The concept of representation was not known to Roman law . It has emerged since the 17th century as a legal institution of economic necessity in a modern society based on the division of labor. “Originally there was no direct representation anywhere. It is a legal miracle. ”The starting point for the modern doctrine of representation is Hugo Grotius and Christian Wolff's conception of party autonomy under natural law . Via Robert-Joseph Pothier , the agency finally came into the Code civil , whose article 1984 defines the mandate as follows:
«Le mandat ou procuration est un acte par lequel une personne donne à une autre le pouvoir de faire quelque chose pour le mandant et en son nom. »
"The mandate or power of attorney is the act whereby someone authorizes another person to do something for and on behalf of the principal."
The Civil Code does not distinguish between the underlying obligation ( French mandate , `` order '') and the authority to represent, i.e. H. of power of attorney ( French procuration ). The Austrian ABGB also assigns the power of attorney to the contractual obligations. The power of attorney is ultimately identical to the order. Only von Jhering in 1847 asserted a difference between the two, Laband's abstract effectiveness .
In continental legal systems, effective representation requires that the representative make it clear to the outside that he is acting on behalf of the person represented. If the representative appears in his own name, i.e. if his position is not obvious , there is no substitute. In common law , however, such a requirement is unknown: "Agency is a relationship which arises when one person called the principal authorizes another, called the agent, to act on his behalf, and the other agrees to do so"
- Axel de Theux: Le droit de la représentation commerciale. Etude comparative et critique des représentants salariés et des agents commerciales . Center interuniversitaire de droit compare, Brussels 1977.
- Ernst Rabel : The representation in the Hellenistic right and in Rome (1934) . In: Hans Julius Wolf (Ed.): Collected essays . tape IV . Mohr Siebeck, Tübingen 1971, ISBN 3-16-630422-3 .
- Guenter Heinz Treitel: On Law of Contract . 11th edition. 2003, OCLC 909216121 , p. 651 .
- Konrad Zweigert and Hein Kötz: Introduction to Comparative Law . 3. Edition. Mohr Siebeck, Tübingen 1996, p. 427-431 .