Page:Harvard Law Review Volume 9.djvu/96

68 68 HARVARD LAW REVIEW. there is no ratification, or that it is not to be perfprmed if, before the assumed principal ratifies, the third person withdraws ; and the proposed problem will be answered in the affirmative under the former condition, and in the negative under the latter. A sufficient answer to this theory is that it is contrary to the facts. The assumed agent and the third person contract absolutely and upon the assumption of authority. The assumed agent, if, as is taken for granted in the problem, he is believed to have authority, repre- sents that the contract is subject to no condition as to ratification. The third person beheves the representation. Hence arises the right of action against the assumed agent in case the false pretence of authority ultimately causes the third person harm. A fourth theory, as different from the theory of Dodge v. Hop- kins as can be imagined, is developed in Bolton Partners v. Lam- bert,^ a case decided by the English Court of Appeal in 1889. The theory is in effect that by reason of the doctrine of relation the original transaction, though not binding the assumed principal until ratification, does from the beginning bind the third person. The consequence is that the problem is answered in the affirmative. If the maxim to the effect that ratification is equivalent to origi- nal authorization be accepted as a full statement of the law, the doctrine of Bolton Partners v. Lambert seems to result; and in this sense the doctrine of. the case tends to make the law pf ratification symmetrical. Yet it has already been pointed out that the maxim is subject to exceptions or explanations, and that by reason of these limitations the fiction of relation is applicable only in so far as justice is not defeated thereby. It seems that in Bolton Partners v. Lambert the court laid too much stress upon the maxim,^ which at most tells what is the effect of ratification when 1 41 Ch. D. 295. Approved by the Court of Appeal in In re Portuguese Consoli- dated Copper Mines, 45 Ch. D. 16 (1890), where the point was really unnecessary. In that case North, J., sitting in the Chancery Division, criticised Bolton Partners v. Lambert; and in the Court of Appeal, Lindley, L. J., said: " Then it is said that the fact that the contract was made by persons without authority makes it void. . . . That was the very point urged in Bolton Partners v. Lambert ; but the court repudiated it, and said : * No, it is voidable at the option of the principal ; he can avoid it if he likes ; he can elect to stand upon it if he likes.'" This explanation of the case resembles the third theory discussed in the text ; but it is not the explanation given in the case itself, as appears in the next note. Bolton Partners v. Lambert is criticised in 5 Law Q. Rev. 440, and in Fry on Specific Performance (3d ed.), 711-713. 2 Thus Cotton, L. J., said : " The rule as to ratification by a principal of acts done by an assumed agent is that the ratification is thrown back to the date of the act done, and that the agent is put in the same position as if he had authority to do the act