Page:Harvard Law Review Volume 9.djvu/90

62 62 HARVARD LAW REVIEW, second is that ratification is incapable of giving rights against the third person if the unauthorized act, for example a notice to quit, called upon him to do some act which, in the absence of authority on the part of the assumed agent, would be unnecessary, — in short to do something promptly, in reliance upon ultimate ratification.^ A third is that ratification is impossible if the assumed agent and the third person have meanwhile agreed to cancel the unauthorized transaction.^ These supplemental rules indicate that, though in legal theory a ratification causes a relation back to the time of the original transaction and vivifies the original transaction throughout the whole intervening time, it is quite impossible to ignore the actual facts as to the temporary unenforceability of the transaction and as to the vast and controlling effect of the ultimate ratification. In short, these supplemental rules indicate that the enforceability of the transaction really arises at the time of the ratification, and is incapable of arising then if absurd or unjust results would follow. The first supplemental rule stated above indicates that ratifica- tion will not be permitted to work injustice toward strangers. The second indicates that, pending ratification, even the third person, in some cases at least, may disregard the possibility of the assumed principal's eventually wishing to adopt the act of the unauthorized agent, and that here also ratification will not be permitted to work injustice. It may be suggested that in this second rule there is an intimation that ratification demands the concurrence of the princi- pal and of the third person ; but the fact is that the second rule is always conceived to be a mere application of a general principle that the doctrine of relation, being a fiction, must be disregarded whenever injustice would otherwise result. The third rule ap- pears to be the most interesting of all. It is obviously not based upon a doctrine that an authorized agent making a contract has actual or apparent authority to cancel the contract ; for there is no such doctrine. Is it based upon a doctrine that an unauthorized agent has a wider actual or apparent authority over the contract than an authorized agent would have ? Apparently not ; and ap- parently the underlying theory is not that the unauthorized agent has rights deserving protection ; for though his unauthorized act, if 1 Right d. Fisher v. Cuthell, 5 East, 491 (1804). If the third person does the act, it seems that ratification will have full effect. 2 Walter v. James, L R. 6 Ex. 124 {1871).