ACTIO EXERCITORIA ET INSTITORIA OR DIRECT REPRESENTATION IN ROMAN COMMERCIAL LAW


                                         ROBERT JAKUBÍČEK

               Právnická fakulta Masarykovy univerzity – Katedra dějin státu a práva


                                         MICHAELA ŽIDLICKÁ



Key words

actio exercitoria, actio institoria, adjective actions, praepositio, direct representation,
liability in solidum


The aim of this contribution is to clarify and explain the institutes of actio exercitoria and
actio institoria, which belong to the group of so called adjective actions (actiones adiecticiae
qualitatis). Although these actions are interesting from many points of view, textbooks and
brochures on Roman law devote to them a maximum of two pages. These are interesting not only
dogmatically, because they are in fact an exception to the obligatio est vinculum iuris rule, i.e.
that the obligation is purely personal relation and as a principle cannot be effective towards
third persons concerned on the contractual relationship. Furthermore, the introduction of adjective
actions by the praetor has affected theoretically-legally political postulate, that a slave is res,
not a person, able to act and enter into contracts on the basis of his own will. Thirdly, the
existence of adjective actions clearly demonstrates that social and economic evolution of antique
Rome, based exclusively on a slave society, was reflected also in social differentiation of bond
persons, i.e alieno iuri subiectae.


On the basis of exegesis of the texts of Digesta and Gaius Institutions, as the case may be on the
basis of interpretation of particular parts thereof on actiones exercitoria et institoria, one may
reach an opinion that although Roman lawyers did not know an institute of direct representation; it
can be said that actio exercitoria and actio institoria constitute, from the present view, a
typical legal institute of direct representation in Roman law.


Both actions were accepted by the praetor as a consequence of development of commercial relations
and trade as such, perhaps in 2^nd century BC. First of these actions has its basis in
a circumstance, where a ship-owner (exercitor) authorizes his agent (magister navis) to command his
ship, while the agent  may be both, a free person, filius familias, or a slave. The situation is
analogical as regards actio institoria, when an owner of a trade or craftsman enterprise authorizes
a person alieno iuris, i.e. so called institor, to manage his enterprise.


The basis of the power-holder´s (dominus) liability is an authorization, so called praepositio,
that sets the limits of this liability. Exercitor is thus liable only for acts within the
authorization. In the case law of Roman lawyers there are instances, where the dominus negotii´s
liability is extended to cover those acts, which are not so narrowly covered by praepositio.  Based
on this, the opinion that the praepositio is the only source and extent of the liability of the
power-holder can be denied – as follows from the traditional doctrine. The overall extent and
content of praepositio is not determined a priori and thus is not dependent exclusively on the will
of the power-holder, but it can be created in the course of negotiations.


The IV. chapter of this contribution compares exercitorial/instutorial authorization to an
authorization within a contract of mandate, where as regards a mandate the will of a client, which
determines the contents of the authorization, is decisive. The authorization shall be detailed,
because it shapes the limits of the manadatary´s powers, and at the same time as regards a client
represents the scope and limits of his liability towards third persons. In case of praepositio
institoria or exercitoria the will of the power-holder is just an initial act of authorization and
only one of the limitations to the execution of the commercial activities. This primary will can be
modified by particular circumstances arising out of acts of the authorized party (slave).
Consequently it can be said that the amplitude of authorizations in case of praepositio exercitoria
or institoria is bigger that in case of contract of mandate (mandatum). At the end of this
contribution the liability and suability of the power-holder (dominus) is analyzed.


At the conclusion, one can observe that through the adjective actions, including actio exercitoria
and actio institoria, the praetor actively intervened to the evolution of commercial relations in
antique Rome and endeavoured to regulate contractual relations, which upon authorization
(praepositio) of the power-holder (dominus, paterfamilias) were entered into on his behalf by
alieno iuri subiectae. Dominus was liable for these obligations in solidum.


Contact-email:

Mgr. et Mgr. Robert Jakubíček

Ondrouškova 21

635 00 Brno

robertjakubicek@hotmail.com