anus ait. plane si, ut exspectares nec urgeres debitorem ad solutionem, mandauero tibi, ut ei des interuallum, periculoque meo pecuniam fore dicam, uerum puto omne nominis periculum debere ad mandatorem pertinere. (15.) Idem ait, si tutor mandet suscipi uel probari nomen quod fecerat, teneri eum mandati, scilicet quondam pupillo suo uel curatori eius. (16.) Si mandauero exigendam pecuniam, deinde uoluntatem mutauero, an sit mandati actio uel mihi uel heredi meo? et ait Marcellus cessare mandati actionem, quia extinctum est mandatum finita uoluntate. quod si mandaueris exigendam, deinde prohibuisti, exactamque recepisti, debitor liberabitur. (17.) Idem Marcellus scribit, si, ut post mortem sibi monumentum fieret, quis mandauit, heres eius poterit mandati agere. illum uero qui mandatum suscepit, si sua pecunia fecit, puto agere mandati, si non ita ei mandatum est, ut sua pecunia faceret ously, if I direct you to wait and not press the debtor for payment, in order that you may give him a respite, and if I say the money shall be outstanding at my risk, I think it is good law that the risk of the debt falls upon me as mandator. 15. Papinian also says; a tutor will be liable for mandate, if he directs his former ward or his curator to take upon themselves or ratify a debt which the tutor incurred 1. 16. If I have given you a commission to get in a debt, and then have changed my mind, can an action of mandate be brought by me or by my heir? Marcellus says the action of mandate fails, because the mandate is destroyed by the change of mind. But if you gave a mandate for the collection of a debt, and then forbade (the agent to act), and yet took the money after it had been collected, the debtor will be released 2. 17. Marcellus also says, if one man has commissioned another to set up a monument to him after his death, the heir of the former can bring an action of mandate (to enforce performance). I think too that the mandatarius, if he has erected it at his own cost, can sue for mandate, unless the terms of the mandate were that he should 1 Prior to the mandate the pupil and his curator could disown the debt, if they pleased; therefore when either of them acknowledges it he undertakes a new liability; hence the mandate refers to a transaction future and not to a transaction past, and therefore is valid. So also in the preceding paragraph. Introd. P. 4. (I. I.) 2 You have acknowledged the agent as your negotiorum gestor, or have reappointed him mandatarius by ratification of his act. 3 The words ut perficiatur are found in some of the MSS. ? monumentum. potuit enim agere etiam cum eo qui mandauit, ut sibi pecuniam daret ad faciendum, maxime si iam quaedam ad faciendum parauit. 13. GAIUS libro decimo ad edictum prouinciale. Idem est et si mandaui tibi, ut post mortem meam heredibus meis emeres fundum. 14. ULPIANUS libro trigensimo primo ad edictum. Heredem fideiussoris, si soluerit, habere mandati actionem dubium non est. sed si uendiderit hereditatem et emptor soluerit, an habeat mandati actionem, quaeritur. et Iulianus libro tertio decimo scribit idcirco heredem habere mandati actionem, quia tenetur iudicio ex empto, ut praestet actiones suas, idcircoque set up the monument at his own charge': for he could have sued the mandator himself to give him money for the carrying out of the work, especially if he had already prepared certain materials for the purpose. 13. Gaius. The rule is the same if I commissioned you to buy land for my heirs after my death. 14. Ulpian. If the heir of a surety has made a payment, there is no doubt that he has an action of mandate. But if he has sold his inheritance3, and the purchaser has made the payment, it is a question whether (the heir of the surety) will have an action of mandate. And Julian in the thirteenth book (of his Digests) states that the heir has an action of mandate, because he can be compelled by proceedings ex empto to cede his rights of action; and the action ex empto can be brought 66 1 We must not imagine that if a man undertakes ex mandato to do something at his own charge," he will be unable to recover what he lays down. He can recover from the mandator himself in all cases, for he is understood to promise merely a temporary advance of the money; but here the mandate by its nature cannot be performed in the mandator's lifetime, and the. death of the mandator, re integra, ends a mandate. If therefore no steps were taken during the mandator's lifetime, the mandatarius has no action against the mandator's heir; but, as is shewn in the con cluding words of § 17, it is the fault of the mandatarius himself if no steps were taken. If the mandate had been to erect a monument at the mandator's charge, the difficulty would not have arisen. 2 Fidejussio is an hereditary obligation, and therefore does not fall under the rule that a mandate, re integra, is extinguished by the death of the mandatarius. Gai. III. 120; Just. Inst. III. 20. 2. 3 If the heir of the fidejussor has sold the inheritance of the fidejussor. 4 Sc. his actio mandati contraria. It is throughout taken for granted that he had ceded the inheritance competere ex empto actionem, quia potest praestare. (1.) Si fideiussori duo heredes extiterint et alter eorum a coherede emerit hereditatem, deinde omne quod defunctus fideiusserat stipulatori soluerit, habebit aut ex stipulatu aut ex empto obligatum coheredem suum: idcirco is mandati actionem habebit. 15. PAULUS libro secundo ad Sabinum. Si mandassem tibi ut fundum emeres, postea scripsissem, ne emeres, tu, antequam scias me uetuisse, emisses, mandati tibi obligatus ero, ne damno adficiatur is qui suscipit mandatum. 16. ULPIANUS libro trigensimo primo ad edictum. Si quis mihi mandauerit in meo aliquid facere et fecero, quaesitum est, an sit mandati actio. et ait Celsus libro septimo digestorum hoc respondisse se, cum Aurelius Quietus hospiti suo medico mandasse diceretur, ut in hortis eius quos Rauennae habebat, in quos omnibus annis secedere solebat, sphaeristerium et hypocausta et quaedam ipsius ualetudini apta sua impensa against him just because he can make cession. I. If a surety have two heirs, and one of them buy the inheritance from his co-heir, and afterwards pay to the stipulator the whole sum for which the deceased was surety, he will be able to proceed against the co-heir either on his stipulation', or on his sale; and therefore the co-heir will have the action of mandate (against the principal). 15. Paulus. If I commissioned you to buy land, and afterwards wrote that you were not to buy it, but you bought it before you knew of my prohibition, I shall be liable to you in an action of mandate, to prevent one who has undertaken a mandate from suffering loss. 16. Uipian. If any one has commissioned me to do something to my own property, and I have done it, it has been a matter of debate whether there can be an action of mandate. And Celsus in the seventh book of his Digests says that he delivered the following opinion, when it was propounded that Aurelius Quietus gave a commission to his host and physician that in his gardens which he had at Ravenna, and to which Quietus used to retire every year, he should construct at the 310 is are expense of Quietus a tennis-court, and baths and other matters before aditio, and is heres ab intestato. Ex stipulatione emptae et vendi tae hereditatis, if that stipulation was made. Gai. II. 252. faceret: deducto igitur, quanto sua aedificia pretiosiora fecisset, quod amplius impendisset posse eum mandati iudicio persequi. 17. PAULUS libro septimo ad Sabinum. Si mandauero tibi, ut a Titio decem exigeres, et ante exacta ea mandati tecum egero, si ante rem iudicatam exegeris, condemnandum te esse constat. 18. ULPIANUS libro quadragensimo ad Sabinum. Qui patitur ab alio mandari, ut sibi credatur, mandare intellegitur. 19. IDEM libro quadragensimo tertio ad Sabinum. Si seruus meus de semet emendo mandaret, ut redimatur, Pompo- or bri nius eleganter tractat, an is, qui seruum redemerit, ultro conuenire possit uenditorem, ut seruum recipiat, quoniam mandati actio ultro citroque est. sed esse iniquissimum Pomponius ait ex facto serui mei cogi me seruum recipere quem in perpetuum ہے requisite for Quietus' health. He could therefore, after setting off the amount by which his buildings were improved in value, recover the balance of his expenditure by action of mandate. 17. Paulus. If I have commissioned you to get in ten sestertia due from Titius, and take proceedings against you for mandate before you have got in the money; if you get it in before judgment, it is an acknowledged rule that the decision must go against you'. 18. Ulpian. He who suffers a commission to be given by another for money to be lent to himself, is considered to give a mandate personally 2. 19. Ulpian. Supposing my slave to give a mandate for his own purchase with a clause for resale, Pomponius minutely h discusses the question whether the purchaser of the slave can at his pleasure sue the vendor to take the slave back again, on the ground that the action of mandate can be brought by either party. And Pomponius says it would be most inequitable for me to be compelled through the act of my slave to take that slave back again, when my intent had been to part with him for ever; and that I ought no more to be liable to the action 1 I sued you for neglect of duty : that neglect is not cleared by your doing your duty subsequently; you therefore have to pay damages, and deliver to me what you have got in. 3 person alienari uolueram, nec magis in hunc casum debeo mandati teneri, quam ut eum tibi uenderem. 20. PAULUS libro undecimo ad Sabinum. Ex mandato apud eum qui mandatum suscepit nihil remanere oportet, sicuti nec damnum pati debet, si exigere faeneratam pecuniam non potuit. (1) Fideiussori negotiorum gestorum est actio, si pro absente fideiusserit: nam mandati actio non potest competere, cum non antecesserit mandatum. 21. ULPIANUS libro quadragensimo septimo ad Sabinum. Cum mandatu alieno pro te fideiusserim, non possum aduersus te habere actionem mandati, quemadmodum qui alienum mandatum intuitus spopondit. sed si non utique unius, sed utriusque mandatum intuitus id fecerim, habebo mandati actionem etiam aduersus te, quemadmodum, si duo mihi mandassent ut tibi crederem, utrumque haberem obligatum. of mandate for this object, than I should be liable to it (to constrain me) to sell him to you'. 20. Paulus. Nothing ought to be retained by the mandatarius out of the proceeds of his mandate; just as he ought also to suffer no loss, if he cannot recover the money he has placed out at interest. I. A surety has the actio negotiorum gestorum, if he became surety for an absent person for the action of mandate is not available, inasmuch as there was no mandate precedent". 21. Ulpian. When I have become your surety on the mandate of another person, I cannot have an action of mandate against you, as a man who became surety for another on that^ other's mandate (would have an action against him). But if I acted out of respect for the mandate of both of you, and not of one only, I shall have an action against you also, just as I should hold both persons responsible, if two had given me a mandate to lend you money. 1 The agreement for resale is supposed to be unknown at the time of sale to the original owner of the slave. There is no doubt that this vendor, if subsequently made acquainted with the covenant, could,✨ if he pleased, compel the purchaser to resell. Hence, the actio mandati being ultro citroque, it would at first sight appear that the purchaser in like manner could compel the vendor to repurchase. Pomponius explains why it would be inequitable to enforce this conclusion. | 2 Not so, however, if the principal subsequently approves of the surety's conduct in becoming surety. See 12. 16. |