代理关系

Agency

本文研究普通法上的代理关系理论,首先表明代理关系缘何成为法律上的专门条目,其次告诉读者:要说明代理关系一出现就会引发的那一系列反常操作,或者背离通则之处,就必须诉诸纯粹常识所不解的某种原因;该原因其实就是古代准则的残留物,这些准则的早期形态体现着家长(基于早已消逝的实质理据)的特定权利和责任,到了现时代,这些准则已被概括为一种拟制,这拟制除了词语形式之外在世界上一无所是,却反作用于法律,并倾向于进一步发扬自己造成的反常操作。本文随后考察主题所涉各分支——侵权、契约、占有、追认——在早期英格兰法上的规定,并表明拟制在每个分支中的效用。最后,本文表明法律的整个轮廓都源于逻辑和常理在一切要点上的冲突。

This article takes as its subject-matter the theory of agency at common law.Firstly,it will be proved that agency is indeed a proper title in the law.Secondly,we will see that the series of anomalies or departures from general rule which are seen wherever agency makes its appearance must be explained by some cause not manifest to common sense alone;that this cause is,in fact,the survival from ancient times of doctrines which in their earlier form embodied certain rights and liabilities of heads of families based on substantive grounds which have disappeared long since,and that in modern days these doctrines have been generalized into a fiction,which,although nothing in the world but a form of words,has reacted upon the law and has tended to carry its anomalies still farther.Thirdly,the early law of England upon every branch of the subject and the working of fiction in each will be examined,including tort,contract,possession,ratification.Finally,it will be seen that the whole outline of the law is the resultant of a conflict at every point between logic and good sense.