The Theory of Apparent Agency as a basis for the Principle of Good Faith in Law and Jurisprudence

Abstract

This study aims to provide a modest academic contribution to the complex and significant subject of the theory of the apparent employee as a foundation for the principle of good faith in judiciary and jurisprudence. This theory, initially developed by the French Council of State, was later adopted by the Egyptian Council of State and embraced by the Libyan judiciary in some of its applications.

The theory offers protection to those who interact with administrative bodies based on an apparent situation that is later revealed to be inconsistent with reality, provided they acted in good faith. However, the French, Egyptian, and Libyan legislators did not establish the theory of the apparent employee as a general principle with defined conditions and criteria. Nevertheless, the judiciary has implemented it by identifying the apparent position in specific circumstances that lead to valid legal effects and confer legal legitimacy to actions performed by public legal employees, whether administrative decisions or administrative contracts.

Therefore, this research delves into the origins, legal basis, and conditions for the application of the theory. It is established in both the French Council of State and the Libyan legal system that general legal principles prioritize adherence to legal truth, thus depriving third parties of protection if they rely on an apparent situation that contradicts the legal truth. Since this theory was developed by the French Council of State and not codified by the legislature as a general rule, its application remains customary in administrative law.

Given the practical importance of this theory, the study explores its relevance by examining the definition and legal foundation of the apparent employee and the cases and forms of the apparent employee as outlined by this theory. The research assesses the validity of the actions of the apparent employee, the legal effects resulting from them, and the judiciary's rationale for applying this theory.

The study emphasizes that this theory is of a precautionary nature, invoked by the judiciary when no other legal basis for resolution exists, in alignment with public interest requirements. As such, the application of this theory does not affect other legal systems.

Keywords: (Apparent Employee Theory, Good Faith, Deceptive Misrepresentation, Third-Party Protection, Legal Statu