Page:Harvard Law Review Volume 9.djvu/91

63 A PROBLEM AS TO RATIFICATION. 63 never ratified, may make him liable to an action in case he really- misled the third person, that liability was deliberately incurred by the unauthorized agent, arid there seems no reason why the law should in his interest create an exception to even so elastic a fiction as the doctrine of relation. The real principle underlying this third rule seems to be that the third person is entitled to pro- tect himself against the uncertainty as to ratification. The third rule, therefore, seems to rest upon the same basis as the second, — the right of the third person to insist that the doctrine of relation shall not do him an injustice. It goes much further than the second rule, however ; for it permits the third person, co-operating with the unauthorized agent, to cancel a transaction to which he actually assented ; and obviously it goes further than the first rule, which simply protects strangers. Thus it seems that the third rule really rests upon a doctrine of its own, a doctrine that, though an unauthorized agent cannot be said to have power to cancel the transaction, and though the third person cannot disre- gard the transaction silently as if he were a stranger, the third person can withdraw his assent to the original transaction by com- municating such withdrawal to the person with whom the original transaction actually was had, and this withdrawal entitles the third person thereafter to treat the transaction as a nullity and to insist that a ratification would do him an injustice. It is already obvious that the maxim ratihabitio retro trahittir does not cover the whole ground. Indeed, it ought to be noticed that the maxim does not purport to indicate in what cases ratifica- tion is capable of taking place. It simply states that, if ratification does take place, it relates back and thereupon leads to results re- sembling those flowing from original authorization. To supple- mental rules, several of which have been stated above, is left the designation of the instances in which ratification is possible. The general principles underlying possibility of ratification appear to be that the transaction in fact does not have full vaHdity until there is ratification, and that this fact must be borne in mind in each in- dividual case, and that in each case the question is whether in the light of this actual fact ratification would lead to absurd or unjust results. These general principles, and the more specific rules un- derlying them, cast interesting and valuable, though not adequate, light upon the general question as to the nature of an unauthor- ized contract in the time succeeding apparent formation and pre- ceding ratification. Upon that general question there is no occasion