European Review of Private Law

Volume 24 (2016)

Volume 24 (2016) / Issue 3/4

Sebastian C.J.J. Kortmann, 'Indirect Representation According to the Draft Common Frame of Reference' (2016) 24 European Review of Private Law, Issue 3/4, pp. 489–500


Abstract: This essay discusses the so-called actio directa and actio contraria, as laid down in the final edition of the Draft of a Common Frame of Reference (DCFR), that is, the possibility of a direct relationship between the principal and the third party in case of indirect representation.

In 1998, Arthur Hartkamp wrote an article entitled ‘Indirect Representation According to the Principles of European Contract Law (PECL), the UNIDROIT Agency Convention and the Dutch Civil Code’. All three sets of rules contain a provision for the actio directa as well as one for the actio contraria. Hartkamp shows that the differences between the three regulations are not significant. At the same time, he concludes that the provisions in the PECL are more clear and more consistently drafted than the others.

The DCFR also contains an actio directa (Art. III.-5:401) and an actio contraria (Art. III-5:402). These provisions differ substantially from those in the other sets of rules.

In this essay, a brief comparative survey is made between the first three sets of rules and the DCFR. In the DCFR, the actio directa is limited to situations in which the indirect representative has become insolvent. The arguments for this limitation are not convincing. Furthermore, the DCFR only provides the third party with an actio contraria if the principal initiates an actio directa against the third party. Thus, the principal is provided with more protection than the third party. There is insufficient justification for such protection.

Based on this survey, it can be concluded that the rules in the PECL are more balanced and consistent and lead to more equitable results than the rules in the DCFR.


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ISSN: 0928-9801
ID: ERPL2016031