Page:The Green Bag (1889–1914), Volume 19.pdf/551

 JHE GREEN BAG tinued repudiation and yet within the apparent scope of his authority. If, how ever, Professor Cook grants the foregoing distinction and makes the requisite two classes of agency, we must concede that "agency by estoppel" forms one class of actual agency. The significant thing about the " agency by estoppel " discussion is that both Professor Cook and Mr. Ewart have failed to extend to contracts some such dis tinction between the consensual relations and the constructive relations of the parties as exists in agency. Professor Cook is doubtless right in saying that "agency by estoppel" is as deserving of being called "actual agency" as what are herein denominated constructive contracts are entitled to be called actual contracts; but in both agency and contracts it is a fiction born of practical necessity, or, if one prefers, a fair rule of the game of making contracts, that renders the unwilling party bound to perform, despite the fact that at the time of the creation of the obli gation he was unwilling and has remained so; and it is only confusing to treat the obligations of such an unwilling party as if they rested on the same kind of consent that obligations actually intended by all parties at the time they arise rest upon. If this fact be realized, then we must yield to Professor Cook's argument sufficiently to let " actual agency " cover both " agency by consent" and "agency by estoppel."

"Agency by estoppel" and "agency by consent" seem to be reasonably satisfactory terms for agency classification purposes,1 but for the distinction in contracts the best available terms seem to be " constructive contracts" and "consensual contracts." And if we adopt these names why not say : "Actual agency, as contrasted with agency by necessity as such 3 consists of (i) Agency by consent,8 and (2) Agency by estoppel;" and "actual contracts, as con trasted with quasi-contracts, consist of (1) Consensual contracts and (2) Construc tive contracts." Others may find better names for the dis tinction in the law of contracts; the ones here suggested are of course tentative. The distinction itself is what is important.

1 It is doubtless too late in legal history to suggest "constructive agency" as a substitute for " agency by estoppel " where the latter phrase is used to cover cases of mere ostensible authority. ' That " agency by necessity," as distinguished from agency by consent and agency by estoppel, is really quasi-contractual in nature, is clear. Huffcut on Agency, and ed. sec. 55. Any agency denominated agency by necessity that is not quasi-contractual must be either agency by con sent or agency by estoppel. 8 Agency by consent is of course divisible into (a) Agency by prior authority (b) Agency by ratification, (c) Agency by adoption. Lincoln, Nebraska. August, 1907.