REPRESENTATION (IN LEGAL ACTS).
- It is the legal institution whereby a person legal transaction (v.) valid for another, with the effect that the consequences of the manifestations of will of the representative are produced with respect to the represented party or dominus negotii. Representation thus defined (cf. art. 1388 of the Italian Civil Code) is the so-called direct representation, which is distinguished from indirect representation (proper, for example, to Roman law), in which the representative acts on behalf, but not in the name, of the represented party, so that the effects of the transaction are transferred to the latter only by virtue of an internal relationship between representative and represented party.
The representative differs from the nuncius: the latter, in fact, is a mere instrument for transmitting the will of the dominus negotii, whereas the former collaborates in the formation of the will.
Representation cannot apply to all legal acts: some of these, in fact, are of such a character that they can be performed only personally (will, emancipation). In the marriage so-called by proxy, the representative’s duties are strictly limited, making him rather a nuncius than a representative in the proper sense.
The representative’s power may have its source in the law (legal representation of incapacitated persons and organic representation of juridical persons), or in the will of the represented party (voluntary representation).
The power of attorney is precisely the unilateral act by which the dominus confers upon the representative the power to act in his name and on his behalf, with respect to other persons. It may be autonomous or included in other transactions (mandate, partnership); but, even in the latter cases, the power of attorney is distinct from the acts in which it is contained.
A mandate, for example, which is the contract (art. 1703 of the Italian Civil Code) by which one party (the mandatary) undertakes to perform one or more legal acts on behalf of another (the mandator), may exist with or without representation. But representation has its source not in the contract, but in the power of attorney, expressly added to the mandate or implicitly contained in II. In a mandate without representation, the relationships are established between the third-party contracting party and the mandatary, who personally assumes the obligations and personally acquires the rights deriving from the transaction performed; the beneficial results of this transaction must subsequently be transferred to the mandator, precisely on the basis of the mandate contract.
The power of attorney, which ordinarily consists of a written act, may also result, even tacitly, from the functions that are assigned to the representative (cf. art. 2213 of the Italian Civil Code). However, when a specific form is required for the performance of an act, the power of attorney too must consist of an act having the same form as the solemn transaction that the representative is entrusted to conclude (art. 1392).
The power of attorney may be general (when it extends to all the affairs of the represented party) or special (when it is limited to one affair or to a group of affairs). For the performance of certain acts, however, a special power of attorney is always required.
As regards the capacity required, the represented party must have capacity to act, whereas for the representative capacity to understand and to will is sufficient.
Representation assumes particular importance in the commercial field, with the figures of the institor, the commercial procurator, and commercial employees (arts. 2203 ff. of the Italian Civil Code). Representation may also occur in the case of the management of another’s affairs, when the manager acts directly in the name of the dominus. A particular case of representation is that which occurs in proceedings, on which V. AVVOCATO.
Canon law too knows broad applications of the institution of representation: for incapacitated persons (can. 89 CIC), juridical persons (cann. 517, 1649), procedural activity (cann. 1647 ff., 1655 ff.), and the taking of possession (v.) of benefices. The procurator whom a person who would be obliged to attend a council sends in his place when prevented from doing so is not, however, a representative, since this procurator has only a consultative vote.
Representation is then almost always excluded for acts constituting the exercise of the power of orders; for the profession of faith (can. 1407); for the oath (cann. 1316 § 2, 1746); for answering the judge’s interrogatories (can. 1746); for the reception of the Sacraments, with the exception of Matrimony (cann. 1088-89); and, finally, for certain acts reserved to the Supreme Pontiff.