Page images

him hurt; and for this, as traceable to the action of the mandator, he can, as before, hold the mandator responsible in his capacity of a negotiorum gestor. Thus the very circumstances which we have already shown to be those which turn an inchoate mandate, mandantis tantum gratia, into a mandate legally binding, are also the circumstances which make what was originally aliena tantum gratia, to be mandantis et aliena gratia, and thereby invest the mandator with the right of action ex mandato against the mandatarius; who in his turn acquires also the actio contraria against the mandator.

The principles we have thus proved to regulate the mandates mandantis tantum gratia and aliena tantum gratia, apply, of course, to the other three varieties above mentioned, which are but combinations of these simpler forms with or without the interest of the mandatarius conjoined.

The contents of D. 17. 1. MANDATI VEL CONTRA may be thus tabulated :

I. The essentials of the contract of Mandate are :
1. A mandate must have reference to a business ex- 12. 14 and 15:
ecutory, or yet to be done, not to one executed.

20. I.
The business must be lawful and honourable. 6.3:12.11 and


13: 22. 6.

[ocr errors]

6. 6:8. 5: 10.

3. It must in general be such that the mandator Empolor

, sing its himself could have done it : mener at man for, are solo but there are exceptions to this rule.

4: 19:54.

22. 3 and 5. 22. 4: 34, 1.

bent for

Sd also it must in general be such that the mananta chil may saptay

datarius could have done it for his own benefit,

irrespective of mandate.
5. It must not (save in the case mentioned in 6. 5)

be for the sole benefit of the mandatarius.
ankers at ke for benefit of hand-
or mansalarms who hol here in.
6. It must be gratuitous.
7 The parties must intend a legal obligation.
8. The responsibility cannot be limited in respect of

time, but must extend to all reasonable con

sequences of the mandate.
II. A mandate may be created
1. By consent in words or writing, however ex-

2. By mere sufferance.
3. By subsequent ratification (see D. 50. 17. 60).

2:6. 4 and 5:
45.7and 8:48.

Iand 2:60. 1. 1. 4:6. 10.7:12. 12:47. 59. 2 and 5.

1. 1 and 2 : 27.

pr. 6. 2: 18: 53. 12. 16.

III. The duties of the mandatarius are

1. To perform what he has promised to perform :

5.1:6.1: 8.2,
6 and 10:22.
7 and 11.
27. 2.

or give notice, if possible, when he is un.

avoidably prevented from performance: but he is not bound to perform when the

mandator has no interest in the perform

8. 6.


2. To perform carefully:

3. To act without fraud or carelessness :

4. To deliver up to the mandator all benefit re

sulting from the execution of the mandate,
whether corporeal:

5. 3 and 4:

31: 56. 2:

59. 4 and 6. 6. 7: 8. pr.,

1 and 10: 9: 42: 55:

60. 3 and 4. 8. 1o: 9: 10. pr.—2: 12. 8: 17: 20: 22. 9 and

10: 59. 1. 10. 6: 27.

. 5: 43: 59. pr. 8. 7 and 10:

10. 3: 12.

10: 30: 39. 3. 2: 5. 3 and

or incorporeal: whether still in his posses

sion :
or lost through his fraud or negligence :

5: 62.

even when the benefit accruing through the

execution of the mandate was beyond
the expectation or contrary to the inten-

tion of the mandator: 5. To pay interest ex mora.

10. 3 and 8:

34. pr.


10. 9: 12. 8

IV. The duties of the mandator are

To repay to the mandatarius his reasonable

and 9.

expenses in the execution of the mandate. Hence rules have to be laid down defining (a) What are expenses: quando abesse

intelligitur pecunia mandatario:

10. 13: 11: 12. 1-4 and 9:

-4: 27. 5: 47: 50: 54. I.

26. 2

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][merged small][merged small][merged small]
[ocr errors]

27. 1.

V. A mandate is ended 1. By the death of the mandatarius, “integro 14. pr. and 1: mandato” (see p. 1):

27. 3: 57. 2. By the death of the mandator, “integro 26. pr. and i:

mandato” and with knowledge on the part 58.
of the mandatarius :
but this rule was of necessity inapplicable to 12. 17: 13:

mandates which were intended to be exe

cuted after the death of the mandator :
and to cases where the death of the man. 26. pr. and 1.

dator was unknown to the mandatarius,
for although the mandate was thus re-

voked the actio mandati still subsisted. 3. By revocation on the part of the 'mandator, 12. 16: 15 : “integro mandato :"

16. 4. By renunciation on the part of the mandatarius, 22. 11; 23: “integro mandato:"

24: 25. 5. By the fulfilment becoming impossible, without

fault of the mandatarius:

3. 2.


VI. The proper remedies for a breach of

mandate are the actio directa em-
ployed by the mandator against the
mandatarius, and the actio contraria
employed by the mandatarius against

the mandator.
But other actions may be concurrent
in special cases.

8. 4.


The actions directa and contraria are 41: 49: 62.
as a rule conexistent; but it is not

impossible for one to be available mandalarisa
whilst the other is not.

un abortion

Tuins sreentes oura 8. 3th im mental in

dan cuir

56. pr.: 60.


60. 2.

8.9: 44.

VII. The actio directa is granted to any

mandator who, either on his own
account or as an agent, delegates
business: for it is to be noted that
although an agent ad litem could
not delegate his functions, the con-
trary was the rule with regard to

agents in general.
The action may be brought either

before or after having recourse to
other remedies, if the latter do not
fully satisfy the mandator's claims.
In a case of joint-agency, the actio
directa may be brought against either
agent in solidum.
If the judgment goes against the agent

on the ground of his fraud, he be-
comes infamous (C. 4. 35. 21), and
the circumstances amounting to fraud
are named in the text.
“ Mandati constitutum est judicium non
minus turpe quam furti.” Cic. pro

Rosc. Amerino, XXXVIII.
When the mandatarius is a filiusfami-

lias or slave, the mandator can either
proceed de peculio against the father
or master, or, if the son or slave has
departed from potestas, can sue either

of them personally.
VIII. The actio contraria can always be

brought by an agent who has conform-
ed strictly to the terms of his mandate:
or has done something which the

law regards as precisely equiva


3. 1: 5: 12.

5 and 7.

4: 46:

I: 56.




and 1. 5. 2:

36. 2

62. pr.

and 3: 41.

but is not available when a different

thing has been done, even though it be more advantageous to the mandator.

5. 5: 33.

3: 4: 22. pr.

and 1 : 59. 6.

D. 3. 5.

[blocks in formation]

If the agent performs part of his man

date, he has the actio contraria in re-
spect of what he has done: if he does
something additional, he has the action

for what he was commissioned to do.
But the last rule only applies when the
warranted and unwarranted part of
his proceedings can be perfectly se-
parated :
and as to the unwarranted acts he

has not usually even the actio
negotiorum gestorum.

31. 4.
When the mandatarius is alieni juris,
the action can be brought by his
paterfamilias or master; and this too
even when the latter was out of pos-
session at the time when the mandate
was given.
In the case of a joint-mandate the

mandatarius can sue the mandators
either jointly or severally in solidum.
When an agent delegates business to a
sub-agent, the latter cannot look be-
yond his own mandator, and therefore
brings the actio contraria mandati

against the first agent.
IX. Although a mandate is gratuitous, and

therefore no promised honorarium can
be recovered by actio contraria: yet
provision is made in a rescript of
Severus and Antoninus for the exaction
of a stated honorarium by extraor-
dinary proceedings before the Pro-
vincial Governor (C. 4. 35. 1); but
an indefinite promise, salarium in-
certae pollicitationis, was absolutely
worthless. (C. 4. 35. 17.)

59. 3: 60. 2.

21 : 53.

56. 3.

« PreviousContinue »