The American Journal of Political Science Law and Criminology
34
https://www.theamericanjournals.com/index.php/tajpslc
TYPE
Original Research
PAGE NO.
34-38
10.37547/tajpslc/Volume07Issue01-06
OPEN ACCESS
SUBMITED
26 October 2024
ACCEPTED
29 December 2024
PUBLISHED
30 January 2025
VOLUME
Vol.07 Issue01 2025
CITATIO N
Adilbaev Bekbosin Abatbaevich. (2025). Ensuring the rights and obligations
of the representative. The American Journal of Political Science Law and
Criminology, 7(01), 34
–
38.
https://doi.org/10.37547/tajpslc/Volume07Issue01-06
COPYRIGHT
© 2025 Original content from this work may be used under the terms
of the creative commons attributes 4.0 License.
Ensuring the rights and
obligations of the
representative
Adilbaev Bekbosin Abatbaevich
Doctoral student of the Karakalpak State University named after Berdakh,
Uzbekistan
Abstract:
Representatives have significant rights and
responsibilities
that
are
critical
for
efficient
management and protection in the domains of law,
business, and politics. This article examines the
procedures for enforcing these rights and obligations,
the consequences of non-compliance, and how this
situation affects stakeholders. This article illustrates the
importance of a balanced approach to ensure that
representatives carry out their responsibilities
efficiently while upholding the values of accountability
and integrity, through an analysis of the basic legislative
framework, case law, and enforcement strategies.
Keywords:
Representation, competent person, partial
or limited transaction, doctrine of representation,
entrusted manager.
Introduction:
In civil-legal relations, the representative
is the one who performs the most fundamental and
direct action. Representation is considered an
institution that determines the legal basis for the
representative acting on behalf of another person. The
representative carries out legal actions by concluding a
transaction on behalf of the person who has entrusted
him or her with it. Therefore, a representative is
required to have appropriate knowledge, qualifications
and skills, professional experience and full legal
capacity. Any individual who has shown a desire to carry
out these actions is a representative, and it is not
permitted to force representation on anyone (or forced
representation is not allowed).
As a rule, a representative is considered a person with
legal capacity. This means that an individual in a state of
emancipation can also be a representative. A
relationship of mutual trust has been established
between the person who can act on behalf of another
person as a representative and the person who grants
the power of attorney. The representative becomes a
The American Journal of Political Science Law and Criminology
35
https://www.theamericanjournals.com/index.php/tajpslc
The American Journal of Political Science Law and Criminology
representative at will and is regarded to have the right
to terminate the representation at any time. In other
words, the rule that ‘impermissibility of unilateral
refusal to perform an obligation’ (Article 237 of the
Civil Code) does not apply to a representative.
The representative must have legal capacity. Since the
legal consequences of a transaction concluded on
behalf of the authorizer do not affect the legal sphere
of the representative and, therefore, do not lead to a
decrease in his property, the law does not prohibit the
representation of citizens with partial and limited legal
capacity (Articles 27, 28 of the Civil Code). However,
since it is impossible to impose on a authorizer who
does not have the capacity to conclude a transaction
the risk of damage resulting from the conclusion of a
transaction on his behalf by an inexperienced or
dishonest representative, it becomes clear that citizens
with partial and limited capacity to conclude a
transaction cannot become guardians or trustees (Law
“On Guardianship and Trusteeship”).
A citizen with partial or limited legal capacity may
experience a loss, in case of non-approval by another
person of a transaction concluded on behalf of another
person without his authority. Therefore, according to
Paragraph 1 of Article 132 of the Civil Code, according
to Articles 27 and 29 of the Civil Code, such a
transaction enters into force for a citizen who is
partially or limitedly legally capable of making a
transaction with the permission or consent of his or her
legal representative.
In civil law literature, civil law actions are divided into
three main groups: transactions (RechtsGESchafte),
transaction-like
actions
(GESchaftsahnlichen
Handlungen) and real actions (Realakte).
Transactions are actions aimed at causing the
consequences of private law, that is, at determining,
changing or canceling civil rights and obligations. These
consequences are determined by the content of the
will of
the
participants,
in
particular
the
representatives, and arise not only because the law
binds them to transactions, but also because those
who make transactions want them to appear in the
first place.
Actions analogous to transactions, such as recognition
of debt (Article 157 Paragraph 1 of the Civil Code),
notification of the debtor's waiver of the claim in favor
of another person (Article 317 of the Civil Code) and
refusal to accept the proper execution proposed by the
creditor (Art. 338 Paragraph 1 of the Civil Code), differ
from transactions in that the legal consequences of
these actions are determined not by the will of the
person, but by law, and whether the participants want
them or not.
The provisions provided for transactions in connection
with the discovery of the will contained in actions
analogous to transactions, including the provisions on
representation, may be applied analogously if the
purpose of these provisions justifies their appropriate
application. With the help of analogy, open gaps in the
law are filled in, in which the rule used in the text of the
law does not exist, although for the purpose of legal
regulation, this rule is required to be in the law [1, 84].
R. Leonhard notes that representation “may be applied
not only in transactions, but also in legal acts analogous
to transactions” [2, 309]. Contrary to this opinion
, A.
Manigk notes the following: “the will of the person
acting in the implementation of actions analogous to
the transaction in relation to the occurrence of a legal
consequence does not have significance until this
consequence arises. In the case indicated by R.
Leonhard, it is about facilitating the implementation of
the factual content of a transaction-like action that is
not representative in the true sense” [3, 315].
However, the author then argues that such assistance,
particularly assistance in conveying a message, cannot
be analyzed as representation by analogy. In this case,
the legal consequences of one person delivering a
message to another person, according to A. Manigk, are
not the “similarity of the message to a transaction” and
the rules on representation do not apply to it, but the
“Vollmachtsverhaltnisse” that bind these persons. In
this situation, the informant is considered to have acted
on the instructions of the employer [4, 22]. This analysis
does not take into account not only the existence of
“Vollmachtsverhaltnisse” between the representative
and the authorizer, but also, first and foremost, the
specifics of similar actions. For this reason, the rules of
representation on analogy are applied to such actions
[5].
Real actions are carried out without the aim of
determining will, and the law binds them to legal
consequences without taking into account the legal
consequences that the person acting desires [6, 334].
Real actions, in particular, the creation of a scientific or
artistic work (Article 8 of the Civil Code), the discovery
of treasure (Article 196 of the Civil Code) and the public
announcement of the award (Article 981 of the Civil
Code). In particular, real actions have very little in
common with transactions, and it seems that the
provisions on transactions should not be applied to
them by analogy.
S. Schlossmann and R. Hoffmann have different views
on the possibility of carrying out some real actions
through a representative.
S. Schlossmann defines representation in his well-
known work “The Doctrine of Representation, Especially
The American Journal of Political Science Law and Criminology
36
https://www.theamericanjournals.com/index.php/tajpslc
The American Journal of Political Science Law and Criminology
in Mandatory Contracts” that it is carrying out
someone else's work at the risk and expense of the
interested party. In this way, the author acknowledges
the existence of a real movement even when one
person makes a new movable object from one's own
materials to another. But the preparation of a new
item is a real action, which leads to the owner of the
materials taking possession of the thing not directly
according to the will of the manufacturer, but rather to
the beginning of this legal consequence. However,
since the owner of the materials allows the use of
these materials, in this case, he acquires the status of
a person who made the movable item for him (Article
182 of the Civil Code). Furthermore, when creating an
object, its direct manufacturer does not express his or
her own will towards it, and even if s/he does express
such will, s/he does not have the right to prevent the
owner of the materials from acquiring ownership
rights to the new object. Therefore, s/he acts not as a
representative, but as an assistant (Gehilfe) to the
producer of the item, which excludes the application of
the rules of representation to his activities.
The representative concludes the transaction on
behalf of the authorizer, that is, the representative
informs the third party that in the process of
concluding the transaction the authorizer should be in
his or her place. The representative with this
information conveys the principle of openness
(Offenheitsgrundsatz) of representation [7].
The statement of the representative that s/he is acting
on behalf of the authorizer serves the interests of the
person to whom the representative's will is directed,
and s/he is aware that his counterparty is not the
person with whom he is entering into a transaction,
but another person. Therefore, the representative's
intention to act on behalf of the authorizer must be
determined by the recipient. On the contrary, the
awareness of third parties acting as a representative
does not have le
gal significance. “ … The direction of
the representative's will (will to represent) should be
“not for third parties”, but at a level that is
distinguishable for the person to whom it is addressed
(partner in expression) [8, 341]. “It is sufficient that t
he
person with whom the representative entered into
legal relations on behalf of the authorizer is aware of
the person's actions as a representative. How this
relationship appears to others is not taken into
account” [9, 225].
In most cases, the the representative declares directly
to the recipient of his will that he is acting on behalf of
the representative. However, it can indicate this in
another way, for example, by concluding a transaction
in his own presence, by indicating that he is his
representative, in particular, a seller in a store owned
by another person (Article 129 of the Civil Code), or by
informing his counterparty that he is concluding a
transaction as a court manager. To do this, it is not
enough for the representative to announce that s/he
protects the interests of another person. Because in this
case, the representative does not directly express his
will to bring about the legal consequences of the
transaction s/he is carrying out in the legal sphere of the
authorizer. H. Reichel rightly
highlights that “if someone
concludes a transaction expressly for the benefit of a
third party, then this... does not mean that s/he is
concluding it on behalf of the third party. With this same
success... s/he can act on his/her own behalf by being...
a commission agent... transferring the work without
assignment... “or” entering into a contract for the
benefit of this third party” [10, 173].
Articles 129, 849, and 1144 of the Civil Code state that
the bankruptcy manager, entrusted manager, and
hereditary manager (executor of inheritance acts) shall
enter into transactions in respect of managed property
on their own behalf. If the situation is described by the
legislator, then these transactions are made by the
managers directly with the intention of causing the
necessary legal consequences for them. At the same
time, the bankruptcy manager, entrusted manager or
hereditary manager as a manager of someone else's
property, expressing a will to ensure that he is the
owner of the property, not only of the transaction he or
she has concluded. Accordingly, the legal consequences
arising from it arise directly with the person granting the
authorization. Therefore, Article 857 of the Civil Code
states that “The rights acquired by the entrusted
manager as the result of actions for the entrusted
management of property shall be included in the
composition of such the property”. As for the
bankruptcy manager and the hereditary manager, a
similar conclusion can be drawn from the fact that there
are no provisions in the law obliging the manager to
transfer the rights acquired during the management of
the property to the authorizer.
Analyzing the actions of managing someone else's
property, H. Dole notes that the manager acts “neutral”,
that is, he does not make transactions on his own behalf
or on behalf of someone else [11, 268]. This statement
does not even have the appearance of reliability,
because when concluding this transaction, the manager
does not express his or her will to create a legal effect
that corresponds to its content, both for himself and for
the owner of the property, as a result of which the
transaction does not enter into force at all.
The representative usually tells the recipient of his will
the name of the authorizer (the person granting the
power of attorney) or allows the recipient to determine
this name himself (for example, it can be read from the
The American Journal of Political Science Law and Criminology
37
https://www.theamericanjournals.com/index.php/tajpslc
The American Journal of Political Science Law and Criminology
front of the store where the agent works as a
salesperson). However, when the representative
informs that the transaction in progress is due to enter
into force for the authorizer whose name is not
disclosed, there is also an action on behalf of the
authorizer and due to the circumstances of the case,
the addressee will not be able to determine who the
authorizer is. In this case, they are talking about a
transaction for the person concerned (GESchaft fur
den, den es angeht).
In practice, the following types of transactions can be
concluded for the relevant person:
a transaction in which the representative does not
name the authorizer, whose identity has already been
determined;
a transaction concluded on the condition that the
representative subsequently identifies and names the
authorizer;
a transaction concluded by the representative on
behalf of an unknown authorizer, whose identity must
be determined [12, 50].
An example of a transaction in which the
representative does not name the authorizer, whose
identity is already known, is the sale of a painting at an
auction, if the organizer acts as the representativeof
the seller and keeps his or her name secret at the
request of the buyer. The legal effect of this
transaction arises for the authorizer, regardless of
whether the addressee later knows the will of the
representative or not.
An example of a transaction concluded under the
condition that the representative subsequently
identifies and names the representative can be given
below. A representative of multiple confidants who
commissioned the purchase of the same item, by
concluding an agreement with the owner on the sale
of this item, can announce which of the confidants will
be the seller one week later, and at the same time
announce the name of the confidants who offered the
highest price. When concluding such a transaction,
since it is unknown in whose legal sphere the legal
consequence corresponding to its content should
occur and whether this legal sphere is generally
defined, the transaction shall not be valid until the
representative specifies the name of the authorizer. It
shall take effect ex tunc upon notification of the name
of the person represented by the representative. Thus,
the legal consequence desired by its parties (in this
example, the emergence of rights and obligations of
the seller and buyer) is considered to have occurred at
the time of conclusion of the transaction (in this
example, a purchase and sale agreement).
REFERENCE
Larenz K. Methodenlehre der Rechtswissenschaft. 6
Aufl. Berlin; Heidelberg; New York, 1991. S. 377;
Krasheninnikov E.A., Baigusheva Yu.V. Issue and scope
of authority // Bulletin of the Supreme Arbitration Court
of the Russian Federation. 2011. N 1. P. 84. Note. 132.
Leonhard R. Der allgemeine Teil des Burgerlichen
Gesetzbuchs. Berlin, 1900. S. 309.
Manigk A. Das Anwendungsgebiet der Vorschriften fur
die Rechtsgeschafte. Ein Beitrag zur Lehre vom
Rechtsgeschaft. Breslau, 1901. S. 315, 355 - 356 mit
Anm. 1.
Manigk A. Willenserklarung und Willensgeschaft. Berlin,
1907. S. 711; ders. Das System der juristischen
Handlungen im neuesten Schrifttum // Jahrbucher fur
die Dogmatik des burgerlichen Rechts. 1933. Bd. 83. S.
22).
Tuhr A. Der allgemeine Teil des deutschen burgerlichen
Rechts. Bd. 2. Halfte 2. S. 369; Enneccerus L., Nipperdey
H.C. Op. cit. Halbbd. 2. S. 911; Larenz K. Allgemeiner Teil
des deutschen burgerlichen Rechts. S. 497; Hoffmann R.
Grundfalle zum Recht der Stellvertretung // Juristische
Schulung. 1970. S. 179 - 180; Leptien U. Kommentar zu
§ 164. S. 1287; Palm H. Vorbemerkung zu § 164 // Erman
W. Burgerliches Gezetzbuch. Handkommentar. 10 Aufl.
Munster und Koln, 2000. Bd. 1. S. 481; Schramm K.-H.
Kommentar zu § 164. S. 1640; Heinrichs H. Einfuhrung
vor § 164. S. 171.
Larenz K., Wolf M. Op. cit. S. 439; Civil law / Ed. A.P.
Sergeeva. T. 1. p. 434 (author of the paragraph - E.A.
Krasheninnikov).
Hubner H. Allgemeiner Teil des Burgerlichen
Gesetzbuches. 2 Aufl. Berlin; New York, 1996. S. 507;
Gernhuber J., Grunewald B. Burgerliches Recht. 4 Aufl.
Munchen, 1998. S. 31; Schramm K.-H. Kommentar zu §
164. S. 1643; Lowisch M., Neumann D. Allgemeiner Teil
des BGB. Einfuhrung und Rechtsgeschaftslehre. 7 Aufl.
Munchen, 2004. S. 89 - 90; Heinrichs H. Einfuhrung vor
§ 164. S. 171.
Tuhr A. Der allgemeine Teil des deutschen burgerlichen
Rechts. Bd. 2. Halfte 2. S. 341 mit Anm. 49.
Oser H., Schonenberger W. Op. cit. S. 225.
Reichel H. Vertragsschluss in eigenem oder in fremdem
Namen? // Schweizerische Juristen-Zeitung. 1919/20. S.
173.
Dolle H. Neutrales Handeln im Privatrecht. Ein Beitrag
zur Lehre von der Stellvertretung // Festschrift fur Fritz
Schulz. Weimar, 1951. Bd. 2. S. 268 ff.
Baygusheva Yu.V. Actions on some
one else’s behalf //
Collection of scientific articles in honor of the 60th
anniversary of E.A. Krasheninnikov.
–
Yaroslavl, 2011.
–
The American Journal of Political Science Law and Criminology
38
https://www.theamericanjournals.com/index.php/tajpslc
The American Journal of Political Science Law and Criminology
p. 50.
