Original scientific paper
Liability of the principal for contractual obligations of the institor
Mirela Šarac
Abstract
On the basis of actio instotoria, the proprietor - the principal was liable for legal transactions of his employee – the institor in full (in solidum) if they had been concluded within the framework of his praepositio. Actio institoria does not represent any subordination of the legal status between the proprietor and the business manager. The institor can be a free man as well as one’s own or somebody else’s son or a slave. Even from its introduction actio institoria was applied in the cases when free persons were employed as commercial employees. The institor was authorised to perform permanently the complex of transactions connected with a certain economic enterprise. Liability of the shop-owner is based on praepositio institoria. By praepositio the proprietor expresses willingness to be obliged by the employee in solidum for the transactions concluded within the limits of condicio praepositionis. As an informal act praepositio is not directed to the employed person – praepositus, but to the third persons. Prepositio was not necessarily expressly stated since the third person could, in certain appropriate circumstances, interpret the concludent transactions as praepositio. Confidence of the third person was protected. In the case of exceeding the act of appointment (praepositio) dominus was not liable. What distinguishes actio institoria from representation in the strict sense is the fact that the conclusion of the contract primarily binds the institor and that legal consequences concerning the liability of the third person do not originate from the legal transaction but by the force of law. In addition, the institor’s co-contractor had to be informed about the appointment of the business manager as well as with the given praepositio. During the time, the application of the management claim (actio institoria) was extended when the so-called actio utilis ad exemplum actionis institoriae was also applied in the cases in which the procurator had concluded the contract. Compensation ratihabitio was thus equalized in legal effects with the previously given order.
Keywords
actio institoria; praepositio institoria; actiones adiecticiae qualitatis; liability in solidum; Roman law
Hrčak ID:
5051
URI
Publication date:
20.10.2006.
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