REPRESENTATION (IN LEGAL ACTS). - It is the institution by which one person intervenes to carry out a juridical transaction (v.) valid for another, with the effect that the consequences of the declarations of will of the representative are produced with respect to the represented party or dominus negotii. The representation thus defined (cf. art. 1388 Italian Civil Code) is so-called direct representation, which is distinguished from indirect representation (characteristic, 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 transaction fall upon the latter only by virtue of an internal relationship between representative and represented party.
The representative is different from the nuncius: the latter, in fact, is a pure 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 character that they cannot be carried out except personally (will, emancipation). In so-called marriage by proxy, the functions of the representative are so rigidly limited as to make him rather a nuncius than a representative in the proper sense.
The power of the representative may find 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 procuration 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 subjects. It may be autonomous or included in other transactions (mandate, partnership); but, even in these latter cases, the procuration is distinguished from the acts in which it is contained.
The mandate, for example, which is the contract (art. 1703 Italian Civil Code) by which one party (mandatary) obliges himself to carry out one or more juridical acts on behalf of another (mandator), may exist either with representation or without it. But representation does not have its source in the contract, but rather in the procuration, explicitly added to the mandate, or contained in it implicitly. In the mandate without representation the relationships are established between the third-party contracting party and the mandatary, who assumes in his own person the obligations and acquires in his own person the rights deriving from the transaction carried out; the useful results of this must then be transferred to the mandator, on the basis precisely of the contract of mandate.
The procuration, which usually consists of a written act, may also result, even tacitly, from the functions that the representative is made to perform (cf. art. 2213 Italian Civil Code). However, when a determinate form is required for the carrying out of an act, the procuration too must consist of an act having the same form as the solemn transaction that the representative is charged with concluding (art. 1392).
The procuration 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 carrying out of certain acts, however, a special procuration is always required.
As regards the capacity required, the represented party must have that of acting, whereas for the representative that of intending and willing suffices.
Representation assumes particular importance in the commercial field, with the figures of the manager, the commercial procurator and the clerks (art. 2203 ff. 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 judicial 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.), for the taking of possession (v.) of benefices. On the other hand, the procurator whom one who would be bound to attend a council sends there when he is prevented from doing so is not 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 order; for the profession of faith (can. 1407); for the oath (cann. 1316 § 2, 1746); for answering the interrogation of the judge (can. 1746); for the reception of the Sacraments, with the exception of Matrimony (cann. 1088-89); and finally for certain of the acts reserved to the Supreme Pontiff.