論無權代理人責任

On Liability of the Unauthorised Agent towards the Third Party

無權代理人向相對人所承擔的責任為造成純粹經濟損失的侵權責任。由於金錢賠償為侵權責任的基本形式，並且相對人締約時並未設想由代理人履行合同，代理人履行合同亦可能無效率，不應以實際履行為責任形式。基於風險分配考量，無權代理人的責任應為嚴格責任，僅在法定代理權的授權規定被確認為無效的情況下方可免責。為免責任過苛，在無權代理人無從確認其就系爭行為是否享有代理權之時，應將責任減輕至費用損失賠償。

The liability of the unauthorised agent towards the third pary by nature is tort liability for causing pure economic loss. Because monetary compensation is the basic form of tort liability, the counterparty did not intend that the contract will be performed by the agent, and it may be inefficient for the agent to perform, specific performance should not be the form of liability. In consideration of risk allocation, the liability of the unauthorised agent should be strict liability. Only when the legal basis of authorizition is appraised as void, the unauthorised agent can be exempted. For the liability not to be too severe, in the case that the unauthorised agent is in no position to confirm if he has the authority, the liability should be mitigated, and the scope of liability is limited to costs compensation.