200 Summary Pozvers of Position and the Swedish Supreme Court In a previous paper I have shown how powers of position have developed in Swedish agency law into a recognized legal ground for the agent to bind his principal. (Scandinavian Studies in Law 1962, pp 95 et seq.) The starting point is the following short provision in sec 10 para 2 of the Swedish Contracts Act 1915: “If a person, by virtue of being employed by another or otherwise by virtue of a contract with the other, holds a posinon fromwhich, according to the lawor usages, there follows an authority to act for the other, he shall be considered to have power to perform all acts falling within the scope of such authority.” The rapid development of the business world into a higher degree of complexity has proved that this provision was too narrow. For this reason a series of Swedish court decisions have elaborated new types of situations, outside the boundaries of the provision, where powers of position are recognized all the same. The technique of uniting all situations where certain powers are conferred on a person because of his position is not in line with common law traditions. On the contrary, the custom there is to distinguish between several kinds of power which mav all be due to holding such a position, viz real authority, implied or incidental authority, authority by estoppel, and agency power. In civil law countries the unitizing technique is well known. As an example it can be mentioned that sec 56 of the German Commercial Code deals with the powers of shop assistants, which include all acts usually required bv a business of the kind m question. In a modern American textbook, the term “power of position” has been used probably under influence from Scandinavian law. (Cf Conrad, Cases and materials on the Law of Business Organization, 2nd ed Brooklyn 1957, p 359.) The object of this study, m homage to the Swedish Supreme Court, is not to give an account of Swedish legal development m this field but to study m some detail how the Court has elaborated the new types of powers of position. Where have the Justices found the basic ideas and legal arguments? As the expansion of powers of position is a characteristic feature in both civil law and common law, one reasonable guess could be comparative law influences. But it cannot be proved that German or English decisions, for instance, have been used as a model in any case. Bv analysing the Swedish decisions in detail it becomes obvious that inspiration has been found in the ideas behind the short provision in the Swedish Contracts Act and in the travaux preparatoires. Where the element of intention on the part of the principal is weak, the element of sanction has been argued in order to protect the good faith of the third party. And the model is not either-or, hut rather that elements of intention and of sanction can cooperate in the same case in order to motivate the Court to arrive at the final result that the principal is bound. (Cf mv Freiburg lecture “Willenselement und Sanktionselement in Vollmachtsrecht”, Juristenzeitung 1984 p 932 et seq, and mv paper in Swedish “Ussings fullmaktslära”, Tidsskrift for Rettszitenskap 1987, pp 290 et seq. This development is thus based on national legal elements. As to the practical results, they coincide verv well with similar decisions, for instance under German and Amencan laix'.
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