Comparative Aspects of Undisclosed Agency

AMONG these persons who act for another, special attention should be paid to the agent of an undisclosed principal.It may be that he does not belong to this group at all if we apply exclusively the distinction based on the doctrine of declared intentions between those who act in their own name and those who act in the name of another.The result of this principle, if actually applied, must be that the undisclosed principal has no direct contractual relationship with the third party, because the agent's contract is for him a res inter alios acta.But the outward appearance of the agent's acts vis-h-vis the third party is not the only matter to be taken into account.The agent's conduct and the intentions of the third party are not the only bases of the contract.Exclusive preoccupation with them leading to the conclusion that the relationship between the principal and agent can have no effect upon the third party, is not a logical necessity.? On the contrary, there are good reasons based on the fact that the transaction is legally destined for the principal for applying also the slogan qui facit per alium est perinde ac si faciet per se ipsum.Because of this conflict of protecting various opposing interests, every system of law must consider how far it is just that the relationship between an undisclosed principal and an agent should influence the contract made by the agent with a third party, or-to put it the other way-how far it is necessary that the fact that the agent acts apparently in his own name alters the effects of any contract he makes on behalf of his principal.This is the crucial question.As Jambu-Merlin has pointed out : " C'est ici que se trouvent vraiment le centre et l'intCr&t essentiel au point de vue du droit compare de la thCorie de l'undisclosed agency " and Wiirdinger considers it " den Hohepunkt des rechtlichen Problems."It appears reasonable that the effects of such an undisclosed agency should fall midway between, on the one hand, the contracts made by a direct agent, who is under no personal liability at all and acquires no rights for himself, and on the other hand, the * See also my article an '' The IJndisclosed Principal " (1953) 16 M.T,.R. 29%317

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