Page:Harvard Law Review Volume 9.djvu/88

60 6o HARVARD LAW REVIEW. A PROBLEM AS TO RATIFICATION. IF a person whom I have not authorized to act as my arjent has made in my name with a third person a contract composed of mutual promises, and if the third person, who originally believed in the authority of the assumed agent, has withdrawn from the transaction and has communicated his withdrawal to the assumed agent or to me, can I, nevertheless, thereafter, promptly upon learn- ing of the contract, ratify the contract and hold the third person? In short, by ratifying an unauthorized bilateral contract can I hold the adverse party, although he has already withdrawn from the contract? The questions underlying the problem go to the very foundation of the doctrine of ratification ; and hence the problem, whether it arises often or not, seems worthy of discussion. Another reason for discussion is that, as to the solution, lawyers have held, and still hold, divergent opinions. To reconcile the opinions, or even to prove by undisputed argument that some one solution is theo- retically correct, must be recognized as an impossible task, simply because of the absence of conceded elementary principles. Yet Agency, it should be remembered, is not a new branch of law, and ratification, as a mode of creating liabiHties in Agency, is so old that cases are found in the Year-Books, and even earlier.^ In dealing with this problem, as with any other as to ratification, one first instinctively turns to the familiar and ancient maxim to the effect that ratification relates back, and is thereupon analogous or equivalent to original authorization. Bracton, obviously follow- ing language used by the Roman lawyers,^ says: " Ratihabitio in hoc casu comparatur mandato."^ In a case decided in 1302 it is said : " Ratihabitio retro trahitur et mandato comparatur." * Coke 1 See, for example, a case decided in 23 H. VIII. (1238-9), reported in Bracton's Note Book (edited by Maitland), pi. 1243. 2 In the Digest, lib. 43, tit. 16, 1. i, § 14, Ulpian speaks of Sabinus and Cassius, " qui rati habitionem mandato comparant," and says " rectius enim dicitur, in maleficio ratihabitionem mandato comparari." Again, in lib. 46, tit. 3, 1. 12, § 4, Ulpian says: Horwood in the Rolls Series), 126, 129.
 * Rati enim habitio mandato comparatur." And see Story on Agency, § 239,
 * Bracton de Legibus, f. 171 b.
 * Dean and Chapter of Exeter v. Serle de Lanlarazon, Y. B. 30 Ed. I. (edited by