Reprezentarea în dreptul roman

Rezumat

In the Roman primitive concept, obligation was conceived on the design of the exclusive dominion exercised over one thing (dominium). The same prerogatives are conferred to both owners: the owner can dispose of his or her own thing, as the creditor can dispose of the insolvent debtor. Threatened in his existence itself, the debtor seems to be (at least after starting the execution over his or her person) an object of an ownership right; the idea of link (ob ligatio) was reduced to the debtor’s chaining, as it was not a legal link of abstract nature.
As it has been understood as a strictly material and exclusive link between the contracting parties, it could produce no effects neither in favour, nor to the detriment of a third party. The judicial report was undertaken through the agency of a certain ritual, using gestures and sacramental words, which imperiously required the presence of the parties upon contracting, the effects being exclusively reflected over these. Such a concept could not leave much room for the parties’ representation upon conclusion of any legal deeds.
The crystallization of the legal theory of the obligation was stimulated at the end of the Republic by trade development. The interests of a good operation of the exchange relationships required a systematization of the contractual rights and obligations at that time. The development of trade and the evolution of concepts managed to shape also the rigidity and formalism of the old law, bringing significant changes in the judicial primitive mentality.
To this end, the Roman obligation in the classical age changes from a strictly material relationship between contractors into a legal relationship focused on a performance representing an economic value – therefore, an active item of the heritage. The impossibility of representation shall be an obstacle in the development of the obligational reports claimed by the expansion of the trade relationships. However, the Roman jurists have never given up in full and definitively to this, due to their well known traditionalism; nevertheless, they gradually mitigated its inconvenience, bringing many exceptions to it.