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PREFACE.

IN works on Jurisprudence and Roman Law references are so frequently made to the Digest, and a knowledge of its contents is so often taken for granted, that lawyers engaged in active work, and not having leisure to grapple with the difficulties of Law Latin, may possibly find an edition of its more interesting parts of some service. Indeed, when Dr Abdy and I were engaged on behalf of the Cambridge University Press, from 1870 to 1876, upon our editions of Gaius, Ulpian and Justinian's Institutes, it was suggested to us by several lawyers of repute that we should do well to take in hand, after the completion of the aforenamed works, a translation of the Digest, or, at any rate, of such Titles of it as treat of topics wherein the English Law is considerably indebted to the Roman. Dr Abdy's appointment to be Judge of County Courts has deprived me of his valuable assistance, but for some years past I have been collecting materials for a work of the

I description suggested to us when we were fellowlabourers, and I hope before long to publish an annotated translation of several Books of the Digest, if the present small instalment is received with favour.

The particular Title of Mandate is not perhaps the most interesting which could have been chosen for a beginning, but having it ready, I put it forward first, because it happens to be the selected topic for the Cambridge Law Tripos Examination of 1879; and therefore it will, I trust, supply an immediate want, and enable me also to ascertain whether the desire to have the Digest translated into English is entertained by any considerable circle of readers.

The Title Pro Socio will at any rate be published shortly, whether other Titles follow or not, in order to complete an edition of Book XVII.

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INTRODUCTION.

MANDATE is a contract in which one person at the request
of another undertakes to transact some business without
reward.

Mandate differs from negotiorum gestio or defensio,
because it is upon request. It differs from locatio-conductio
operarum, because it is gratuitous.

Mandate is usually accounted one of the consensual contracts, and yet it differs from the rest of them in two most important particulars, viz. ist, that it is gratuitous, whereas the others are upon valuable consideration; and, that simple consent does not create the obligation of mandate, for either party can withdraw from his engagement re integra: and by re integra is denoted not merely that performance has not yet commenced, but further, that non-performance is not yet detrimental to either contractor.

In Roman Law a contract may be defined to be an agreement which the law enforces because of its being accompanied by causa. And by causa is understood something which the law regards as binding; whether a solemnity, as in the old-fashioned nexum, in stipulatio and in expensilatio; or delivery or performance by one of the parties, as in the real contracts; or the mere nature of the transaction, as in emptio-venditio, locatio-conductio and societas. In mandatum this causa, or binding fact, is the nature of the agreement, coupled with the springing up of an interest in its being executed, and this interest may be either on the side of the mandator or the mandatarius. Hence mandatum is something intermediate in character between the real and the consensual contracts. It is not a mere consensual contract, because it is not binding simply because of its own nature and the consent of the parties. It is not a real contract; or at any rate, if real, it is real in a different sense from the contracts usually so designated : for in these the causa is

а

invariably the delivery of an article by the creditor, or the performance of an act by the creditor, with the intent of imposing on the debitor a duty which the latter agrees to undertake. But in mandatum, if the inchoate obligation is made final by any res, i.e. by any delivery or act, (for that is the sense of res in a Roman real contract,) the res proceeds from the debitor: and moreover the mandatum may be made final by what is no res at all in the Roman sense, viz. by the accident of performance by the mandatarius becoming necessary to save the mandator from loss or inconvenience.

If the principal or mandator does not revoke his mandate before the agent or mandatarius has begun performance, the mandate becomes final, for the mandatarius has now an interest in its being carried on to completion. If the mandatarius has not yet taken any steps, still he cannot renounce, if it is to the interest of the mandator that he should proceed to execute what he undertook to do. Hence if ndate is to be called a real contract, we must note that it is real in a very peculiar sense : the binding res being either an act, not on the part of the creditor, but of the debitor: or a forbearance, instead of an act, on the part of the creditor: for although

it is impossible to agree with the dictum of Professor Hunter, Park armeuds

in his admirable “ Exposition of Roman Law,” that “the cenclic

principal has an action against the agent only when he has suffered injury by trusting to his promise and thereby forbearing to take the steps he would otherwise have taken to protect his interests:" yet this statement is entirely correct if the word “ only” be omitted from it.

Mandate, then, is a contract sại generis as to its causa ; lying between the real and consensual contracts: enforceable by action when to the fact of consent of the parties is superadded the springing up on either side of an interest in the fulfilment of what has been entrusted and undertaken.

Mandatum in the Roman Law might be either general or special : express or tacit: for “semper qui non prohibet

? pro se intervenire mandare creditur3 ;” and moreover ratification of the proceedings of a negotiorum gestor turns him into a mandatarius, so far as to give rise to the actiones mandati directa et contraria 3.

A mandate might also be conditional, future or post mortem mandatoris *.

1 Hunter's Roman Law, p. 361.
3 D. h. t. 6. 2: 18: 22. 10: 40.

3 D. 50. 17. 60.
4 D. h. t. 1. 3 : 27. 1.

"

Mandate was not only useful, but in certain cases an absolute necessity : for although corporeal property could be so transferred as to vest in the transferee all the rights of the transferor, it was not so with rights, or "things incorporeal," an inheritance, for instance, an usufruct, an obligation or a right of action. Hence, the transfer of property of this character could only be effected by empowering the transferee to sue in the name of the transferor; and thus mandate was the method of constituting the former procurator in rem suam, “agent for his own benefit,” till Antoninus allowed the emptor hereditatis to bring an 'utilis actio in his own name', and subsequent emperors extended the privilege to other transferees of mere rights

A mandate might be (1) for the benefit of the mandator alone, (2) or of the mandator and mandatarius, (3) or of a stranger alone, (4) or of the mandator and a stranger, (5) or of the mandator, mandatarius and a stranger. But with regard to the third variety of mandate the difficulty meets us, that no man can bring an action unless he has an interest to defend. How then can a mandator who gives a mandate aliena tantum gratia be entitled to sue the mandatarius for nonperformance or faulty performance of that wherein he, the mandator, is not interested? In other words, how are we to reconcile the apparently conflicting statements of 6. 4 and 8. 6, h. t. ? The answer is that a mandate at the time it is given may be aliena tantum gratia, but that it must become mandantis gratia also, before it can be sued upon. And it may become mandantis gratia in two ways. In the first place, this may be the result of the mandatarius beginning to act, for he thus turns his mandator into a negotiorum gestor of the benefited party, i. e. he makes him an unsolicited intermeddler with another's affairs; and a negotiorum gestor is answerable to the stranger for any mismanagement or loss. Hence, from the moment the mandatarius begins to act, the mandator, by reason of his own liability to the stranger, has an interest sufficient to found a right of action against the mandatarius. Secondly, the stranger, because of his knowledge of the mandate having been given, supposing he hears of it, may abstain from executing his own business, so that the nonperformance or faulty performance of the mandate may do

1 D. 2. 14. 16.

C. 4. 10. 1. 2: C. 4. 10. 2.: C. 4. 10. 20: C. 4. 39.7: C. 6.37• 18:

C. 8. 54. 33.

3 D. h. t. 2. 12-5.

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