REPRESENTATION (IN LEGAL ACTS)
Representation is the legal institution by which a person intervenes to perform a juridical act (v.) that is valid for another, with the effect that the consequences of the representative’s declarations of will are produced with regard to the represented party or dominus negotii. The 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, of Roman law), in which the representative acts on behalf of, but not in the name of, the represented party, so that the effects of the act are transferred to the latter only by virtue of an internal relationship between representative and represented.
The representative differs from the *nuncius*: the latter is in fact a mere instrument for transmitting the will of the dominus negotii, whereas the former collaborates in the formation of the will.
Representation cannot be applied to all juridical acts: some of these, in fact, are of such a nature that they can only be performed personally (e.g., a will, emancipation). In the so-called proxy marriage, the duties of the representative are strictly limited, to the point of making him rather a *nuncius* than a representative in the proper sense.
The representative’s power may derive from the law (legal representation of incapacitated persons and organic representation of juridical persons) or from the will of the representative (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 regard to third parties, it may be autonomous or included in other acts (mandate, partnership); but even in these latter cases, the power of attorney is distinct from the acts in which it is contained.
The mandate, for example, which is the contract (art. 1703 of the Italian Civil Code) by which one party (mandatary) undertakes to perform one or more juridical acts on behalf of another (mandator), may exist with or without representation. But representation does not have its source in the contract, but rather in the power of attorney, explicitly added to the mandate or implicitly contained within II. In a mandate without representation, the relationships are established between the third contracting party and the mandatary, who assumes the obligations and acquires the rights arising from the act performed; the beneficial results of this act must then be transferred to the mandator, on the basis of the mandate contract itself.
The power of attorney, which usually consists of a written act, may also result, even tacitly, from the functions 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 must also consist of an act having the same form as the solemn act that the representative is entrusted to conclude (art. 1392).
The power of attorney may be general (when it extends to all the representative’s affairs) or special (when it is limited to one affair or 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 representative must have the capacity to act, whereas for the represented party it is sufficient to have the capacity to understand and to will.
Representation assumes particular importance in the commercial field, with the figures of the *institore*, commercial agent, and clerks (art. 2203 et seq. of the Italian Civil Code). Representation may also occur in the case of 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 legal proceedings, on which see AVVOCATO [ATTORNEY].
Canon law also recognizes extensive applications of the institution of representation: for incapacitated persons (can. 89 CIC), juridical persons (can. 517, 1649), procedural activity (can. 1647 et seq., 1655 et seq.), and for the taking of possession (v.) of benefices. The procurator who would be held to intervene at a council if prevented from doing so, however, is not a representative, since this procurator has only a consultative vote.
Representation is moreover almost always excluded for acts constituting the exercise of the power of order; for the profession of faith (can. 1407); for the oath (can. 1316 § 2, 1746); for answering the judge’s interrogation (can. 1746); for the reception of the Sacraments, with the exception of Matrimony (can. 1088–89); and finally for certain acts reserved to the Supreme Pontiff.