02 March 2012 Written by  Awet Hailezgi and Addisu Damtie

The Ethiopian Approach

Genesis, Development and Principles

The Roman low has been exerting a significant impact on the formation and development of modern private laws in many countries of the world, starting from the era of Justinia who was the Emperor of the Roman Empire around the 6th century A.D “Ethiopians at this time were in permanent communication with the Roman Empire of the East from which they derived their law (the Law existing legal system) based on the Roman law of Justinia.

From the above point we can observe that, even prior to the adoption of the Fetha Negest around the 16th century; the Roman law of Justinian influenced the Ethiopian legal system in its earliest stage. The Fetha Negest was not directly adopted from the Romans. It was a translation of the Egyptian Arabic prospects /version/ into ‘Geez’

Based on the point the “Ethiopian Christians declared the authority of the religious canon translated from Arab into Geez the Liturgical language of the Coptic church, and this model is related to the Byzantine tradition of law, and the Fetha Negest which is translation into Geez of Arabic precepts of the law which found their first inspiration in the book of Syro-Roman law and consequently in the Roman”

The historical genesis of the Fetha Negest, as discussed above, has connections with the early laws of the Roman Empire. TheFetha Negest under chapter 30 deals with the concept of mandate. This provision, which is provided for under chapter 30 dealing with the contract of mandate, provides rules governing the relationship of mandatory (Principal) and mandatory (agent). It doesn’t draw any distinction between the contract of mandate and authority. In this case, it means the contract of mandate embodied in the Fetha Negest is concerned only with the internal relations of the principal and agent; it doesn’t deal with the external relations of principal and agent towards third parties.

Hence, based on the concept encapsulated under the Fetha Negest, regarding the contract of mandate:

The mandatory (agent) used to accept the mandate with or without remuneration; and a mandate was not held valid unless the mandatory (principal) gives it verbally and the mandatory [agent] accepts the word of the mandatory either formally or by his action”  (Rene David “1962, P 192)

In addition to the above point, the mandatary (agent) was obliged to follow the instructions provided from the mandator (principal). For example, the agent (mandatary)

Is prohibited to sell any thing on credit, without the order (direction provided beyond the fixed price. In addition to this, the Fetha Negest had a concept, which states that the mandator was to refrain from intervening whenever there is a dispute between the mandatary and the third party. According to this concept, the mandatary should confront the third party and be liable to third parties if any. ( Paulas Tzasuam  1968, pp.172  )

The aforementioned concepts indicate that according to the Fetha Negest, the contract of mandate had only to say with regard to the internal relation of the mandate giver and the mandate receiver (mandatory or agent). Hence the external relations i.e the relation of the mandatory or mandatory with a third party was not given a cover.

The concept of mandate provided under the Fetha Negest is similar to that of the continental Europe codes that had been promulgated prior to the coming into view of the separation theory. As provided earlier, in the discussion of civil law theory of agency, the distinction between authority and mandate was actualized after the theory of separation was identified. The theory of separation laid a clear demarcation between mandate and authority. Hence countries that adhered to the continental legal system adopted this approach.

To mention examples “The above concepts are found encapsulated under art. 164 of the German civil code, art 32 of the law of obligation of Switzerland, civil code of France art 211, and art. 2179, 2199 of the civil code” of Ethiopia

In addition to this, as provided by Michal Kindered, “ the principal sources of the Ethiopian civil code with respect to the law of obligation was the Swiss Federal code of obligations, and the French civil code was an important source”

From the above discussion point of view, the Swiss federal code of obligation and the French civil code, which became the sources for the Ethiopian law of agency, incorporate the concept of separation under their legal system. Hence, we can deduce that the current representation law of Ethiopia adheres to the theory of separation. Therefore, the Ethiopian Law of agency deals with the respective concepts of mandate and authority in different provisions of the code. Hence, the internal relations of the principal and agent are dealt with by arts 2179-98 of the civil code. However, the external relations of the principal and agent towards the third party are governed by articles 2179-98 cum Art 2199-2265 based on art 2233 of the civil code.

The Ethiopian civil code also adheres to the mode of the civil law theory in agency representation. This is through adopting the name test theory.

Art. 2197(1) states:

“An agent who acts in his/her own behalf shall personally enjoy the rights or incur the liabilities deriving from the contracts he makes with third parties, not with standing that such third parties know that he is an agent.”

The concept of the above provision is that it stresses the principle that, as far as an agent acts in his own name, but for the interest of his/her principal, the third party should not directly sue the principal where there is non-performance of contracts. What does this mean?

As far as the agent enters into a contractual agreement with a third party, without disclosing his intention to a third party that he is transacting on behalf of his principal, the agent shall be liable for damages incurred on third parties. And since, the agent acts in his/her own name, the awareness of the third party that he/she is an agent is not an issue and it does not make him free form liability. In the same manner an undisclosed principal who has an interest on a third party has no right to get his remedy by brining a direct action against a third party.

The concept of commission agency is also incorporated under the civil code.

Art 2234(1) states

“ the commission to buy or to sell  is a contract of agency whereby the agent, called the commission agent, undertakes to buy or to self in his own name but on behalf of another person, called the principal, goods, securities or other fungible things.”

Under the Ethiopian law of agency, so as to create a commercial link between the principal and the commission agent, two consecutive contracts should be made by the commission agent. These are the contract that is made between the third party and the commissioner [representative] and the relation existing between commissioner and the principal.

According to the above point, there is no direct relation   /connection/ between the principal and the third party. The main function of a commission agent, according to the civil Code, is to sell, buy or forward goods in the name of the commission agent but on behalf of the principal. The concept of commission agency is governed by special provisions (Art 2234-2252) of the civil code.

Last modified on Wednesday, 02 May 2012 13:05