ex causa fideiussoria fueram, heres postea extitero, habebo mandati actionem.

12. ULPIANUS libro trigensimo primo ad edictum. Si uero non remunerandi causa, sed principaliter donando fideiussori remisit actionem, mandati eum non acturum. (1.) Marcellus autem fatetur, si quis donaturus fideiussori pro eo soluerit creditori, habere fideiussorem mandati actionem. (2.) Plane, inquit, si filius familias uel seruus fuit fideiussor et pro his soluero donaturus eis, mandati patrem uel dominum non acturos, hoc ideo, quia non patri donatum uoluit. (3.) Plane si seruus fide

to whom I have had to pay damages as a surety, I shall still have the action of mandate.

12. Ulpian. But if he abandoned his right of action to the surety with no purpose of rewarding him, but simply as a gift, then the surety cannot proceed ex mandato1. 1. Marcellus however admits that the surety has an action of mandate when any one, with intent to benefit him, pays the creditor on his behalf2. 2. But clearly, says he, if the surety was a filius familias or a slave, and I pay on his behalf with the intent of conferring on him a gift, the father or master will not have the action of mandate, for the reason that the payer did not intend a gift to the father 3. 3. It is obvious, says the same Marcellus

peculium. But still the present paragraph is difficult of explanation. In § we are told that payment by a friend of the surety is by a fiction treated as payment by the surety himself, and in § 3 that payment by a slave is by another fiction treated as payment by the master. The latter, however, is scarcely a fiction. Bartolus and Gothofred, nevertheless, consider it to be one, and then proceed to lay down a rule that a double fiction, or fiction upon a fiction, is inadmissible; and in § 2 they say there would be a double fiction, if recovery were allowed by the father or master, viz. the fiction that the stranger's payment was made by the son, and the fiction that the action acquired by the son is acquired by the father. A simpler explanation is that though the law

iussor soluerit, dominum mandati acturum idem Marcellus ibidem ait. (4.) Si filius familias non iussu patris fideiusserit, cessat mandati actio, si nihil sit in peculio: quod si iussu, uel ex peculio solutum est, multo magis habet pater mandati. (5.) Si filio familias mandaui, ut pro me solueret, patrem, siue ipse soluerit siue filius ex peculio, mandati acturum Neratius ait: quod habet rationem, nihil enim mea interest, quis soluat. (6.) Si filio familias mandauero, ut pro me solueret, et emancipatus soluat, uerum est in factum actionem filio dandam, patrem autem post emancipationem soluentem negotiorum gestorum actionem habere. (7.) Contrario iudicio experiuntur qui mandatum susceperunt, ut puta qui rerum uel rei unius

in the same passage, that if a slave surety has paid, his master has the action of mandate. 4. If a filiusfamilias has become surety without his father's order, the action of mandate fails, if there is nothing in the peculium: but if he became surety by his command, or if payment has been made out of his peculium, the father certainly has the action of mandate. 5. If I have commissioned a filiusfamilias to make a payment on my behalf, Neratius says that the father can proceed by action of mandate, whether he has paid personally or the son has done so out of his peculium. And this is reasonable, for it makes no difference to me who pays. 6. If I have commissioned a filius familias to make a payment on my behalf, and he pays after being emancipated, it is proper that an actio in factum should be allowed to him': but if the father pays after the emancipation, he must have an actio negotiorum gestorum. 7. Those who have undertaken a commission can make use of the actio contraria, for instance those who have undertaken the agency of business generally or of a particular piece of business.

would protect the father against loss, if the son or slave had actually paid; it will not confer on him a gain, when the stranger expressly desired that the gain, if any, should go to the son or slave.

1 If the son had remained under potestas, the money he paid would have been his father's, and therefore the father would have had an actio mandati for its recovery from the

mandator. But if he pays after emancipation, he pays with his own money, and the father has no action. Still the actio mandati does not belong to the son, because, having suffered capitis deminutio, he is not in the eye of the law the person who was made mandatarius; but equity interferes, he is actually the same person, and so has an actio mandati utilis or actio in factum.

et

procurationem susceperunt. (8.) Inde Papinianus quaerit, si patronus praedium quod emerat, pro quo pretii bessem exsoluerat, iusserit liberto suo tradi, ut ille residuum pretii redderet, deinde reddito pretio uendenti fundum patrono libertus consenserit, trientis pretium an libertus possit repetere. ait, si mandatum suscepit initio libertus, non donatum accepit, contrario iudicio posse eum pretium repetere, quod deductis mercedibus, quas medio tempore percepit, superest: quod si donationem patronus in libertum contulit, uideri et postea libertum patrono donasse. (9.) Si mihi mandaueris, ut rem tibi aliquam emam, egoque emero meo pretio, habebo mandati actionem de pretio reciperando: sed et si tuo pretio, impendero tamen aliquid bona fide ad emptionem rei, erit contraria mandati actio: aut si rem emptam nolis recipere: simili modo et si · quid aliud mandaueris et in id sumptum fecero. nec tantum id quod impendi, uerum usuras quoque consequar. usuras autem non tantum ex mora esse admittendas, uerum iudicem

8. Hence Papinian propounds this question: if a patron who had bought land and paid two-thirds of the price, directed that it should be delivered to his freedman, on the understanding that he (the freedman) was to pay the balance of the purchase-money; and then, after the price had been fully paid, the freedman gave his consent to a sale of the land by the patron; can the freedman recover the price of one-third? And he decides that if at the outset the freedman undertook a mandate, and did not accept a gift, he can by actio contraria recover the price, i. e. the surplus after setting off the rents which he enjoyed in the intervening time; but if the patron made a present to the freedman, the freedman is to be regarded as making a subsequent present to his patron. 9. If you have commissioned me to buy something for you, and I have bought it with my own money, I shall have an action of mandate to recover the price; and even if I have bought it with your money, and yet in good faith have incurred some expense in buying the thing, an actio mandati contraria will lie; and so will it if you refuse to accept the purchase. So too, if you have given me any other commission, and I have been put to expense thereby. And I shall obtain not merely what I have expended, but interest also. And not only is interest to be allowed for delay, but the judge must also take

aestimare debere, si exegit a debitore suo quis et soluit, cum uberrimas usuras consequeretur; aequissimum enim erit rationem eius rei haberi: aut si ipse mutuatus grauibus usuris soluit. sed et si reum usuris non releuauit, ipsi autem et usurae absunt, uel si minoribus releuauit, ipse autem maioribus faenus accepit, ut fidem suam liberaret, non dubito debere eum mandati iudicio et usuras consequi. et (ut est constitutum) totum hoc ex aequo et bono iudex arbitrabitur. (10.) Dedi tibi pecuniam, ut creditori meo exsoluas: non fecisti: praestabis mihi usuras, quo casu et a me creditor pecuniam debitam cum usuris recepturus sit: et ita imperator Seuerus Hadriano Demonstrati rescripsit. (11.) Si adulescens luxuriosus mandet tibi, ut pro meretrice fideiubeas, idque tu sciens mandatum susceperis, non habebis mandati actionem, quia simile est, quasi perdituro pecuniam sciens credideris. Sed et si ulterius directo man-. dauerit tibi, ut meretrici pecuniam credas, non obligabitur

account of any one having called in money from his creditor and made payment, when he could have obtained very good interest; for it will be most equitable to take an account of this circumstance; or if he has paid after borrowing himself at heavy interest. And even though he has not relieved his principal from interest, but still has lost interest himself; or if he has relieved his principal from lighter interest, and has himself borrowed at higher interest, in order to fulfil his engagement, I do not doubt that in his action of mandate he ought to recover interest as well (as principal). And, as laid down in the Constitutions, the judge will assess all this on principles of fairness and equity'. 10. I gave money to you that you might pay my creditor, and you did not do so. You will pay me interest in case my creditor could have recovered from me the money due and interest. And to this effect the Emperor Severus wrote a rescript to Hadrianus Demonstrates. 11. If a profligate youth commissions you to become surety for a harlot, and you undertake the commission with knowledge (of the circumstances), you will have no action of mandate; for it is the same as if you wilfully lent money to a person who was certain to waste it. And further, if he directly authorized you to lend. money to the harlot, no obligation of mandate will arise, on

1 C. 4. 35. 18.

mandati, quasi aduersus bonam fidem mandatum sit. (12.) Cum quidam talem epistulam scripsisset amico suo: 'rogo te, commendatum habeas Sextilium Crescentem amicum meum,' non obligabitur mandati, quia commendandi magis hominis quam mandandi causa scripta est. (13.) Si quis mandauerit filio familias credendam pecuniam non contra senatus consultum accipienti, sed ex ea causa, ex qua de peculio uel de in rem uerso, uel quod iussu pater teneretur, erit licitum mandatum. hoc amplius dico, si, cum dubitarem, utrum contra senatus consultum acciperet an non nec essem daturus contra senatus consultum accipienti, intercesserit qui diceret non accipere contra senatus consultum, et 'periculo meo crede,' dicat, 'bene credis'; arbitror locum esse mandato et mandati eum teneri. (14.) Si post creditam pecuniam mandauero creditori credendam, nullum esse mandatum rectissime Papiniaccount of the mandate being contrary to good faith'. Supposing a man writes to this effect to his friend: "I beg you to accept my recommendation of Sextilius Crescens, a friend of mine;" he will not be liable for mandate, because his letter was intended rather to recommend the person than to give a commission. 13. If any one has directed you to lend money to a filiusfamilias, who accepts it without contravening the senatusconsultum', but under circumstances which make the father liable either to the action de peculio et in rem verso or to that quod jussu3, the mandate will be a lawful one. More than this, I maintain that if I was in doubt whether he would violate the senatusconsultum or not by accepting the loan, and did not intend to give the money if he would violate the senatusconsultum, and a man interfered and declared that he would not violate the senatusconsultum by accepting, saying "lend it at my risk," or "you will lend legally," I think that mandate comes in, and that this person is liable for his mandate. 14. If after money has been lent, I direct the creditor to lend it, Papinian most correctly states that this is no mandate. Obvi

1 "A transaction base in itself cannot be matter of mandate" (6. 3). But this transaction is not base in itself, since lending money is an innocent act. The present paragraph therefore introduces a corollary to the rule just quoted, viz. that a

12.