BOOK III. No fixed form is necessary to constitute a mandatum', which may be done verbally, or by letter; and it may even arise by mere presumption, where one permits another to transact his business for him. A mandatum might be general, or special; the former embracing the general management of the mandans, or only some particular commission confided to the mandatarius; and might arise five five ways. Ways: sive mea tantum gratia tibi mandem; sive aliena tantum; sive mea et aliena; sive mea et tua; sive tua et aliena3. Might be constituted No payment. Might be cancelled or revoked. A mandatum is contracted by consent only. The subject of the contract must not involve any illegal or immoral act; for rei turpis nullum mandatum est. There can be no payment (merces) involved, but a honorarium will not destroy the character of the contract. If the mandatarius exceeded the powers conferred on him by the mandans, the latter was not bound by his acts. Since the mandatarius was selected on account of the trust reposed in him, if he delegated his commission to a third party he did so at the risk of breaking the contract, but if the instructions of the mandans were fully performed he would be liable. A mandatum might be cancelled by the mutual consent of the parties, or revoked by the mandans, or renounced by the mandatarius, re integra", that is, when integrum jus mandatori reservetur vel per se, vel per alium, eandem rem commode explicandis. Lastly, by the death of either of the parties re integra; but it would appear that if the business were in that state at the time of death, that there could have been no revocation, the liabilities deLiability. volved upon the heir. The mandatarius having voluntarily undertaken that which he might have 1 D. XVII. I. I. 2. 4 D. XVII. I. 6. 3. 6 D. XVII. I. 5. 8 D. XVII. I. 22. 11. 2 D. XVII. 1. 6. 2. 5 D. XVII. I. 6. 3 D. XVII. I. 2. 7 I. III. 27. 9. and 11. 9 D. XVII. 1. 2. 6. Id. XXVII. 3. declined, was liable for culpa levissima'; if guilty CHAP. of fraud, or culpa lata, he was notus infamia. VIII. This contract gives rise to the actio mandati Actions. directa, and contraria. The former lies for the mandans against the mandatarius and his heredes, to compel the performance of the contract, and to recover such damages as may have been occasioned by his negligence; the latter, to indemnify the mandatarius for any loss he may have sustained. Dr Hallifax says that in the Laws of England the contract of mandatum is of no use. In this he is mistaken, because the Law of England distinctly recognizes the liability of unremunerated agents, who stand in the same position as the mandatarius of the Civil Law. Story, in his Commentaries on Bailments, includes the contract of mandatum; but the Civil Law takes a much wider view of the contract. A mandatum may include a bailment, "a delivery of goods," &c. according to the definition. of Sir William Jones; but the mandatum of the civilians is omne negotium honestum gratis susceptum, and does not necessarily involve the delivery any thing. of 1 C. IV. 35. 13. and 21. 2 D. III. 2. I. 3 See Coggs v. Bernard Smith's Leading Cases, Vol. I., and Story On Bailments. BOOK III. contracts. Definition. CHAPTER IX. Of Obligations quasi ex contractu, or from Implied IMPLIED, or quasi contracts, are those in which the obligation is founded on the consent of the Implied parties not expressed, but presumed: Sunt facta honesta quibus et ignorantes obligantur, ex consensu, ob equitatem vel utilitatem, præsumto'; because every one is presumed to consent to that which is for his benefit; and no one can be presumed to desire to enrich himself at another's expense; for qui vult quod antecedit, non debet nolle quod consequitur. Negotiorum gestio. Quasi contracts were principally six, though many others might arise which it would not be easy to specify2. They are as follows: 1. Negotiorum gestio. 2. Tutela. 3. Rei communis administratio. 4. Hereditatis administratio. 5. Hereditatis aditio. 6. Indebiti solutio. 1. Negotiorum gestio is where one gratuitously transacts the business of another for his benefit upon his presumed consent; the consent of the principal being presumed because it is done to prevent an inevitable, or probable loss. The business done must therefore be gratuitously undertaken for the benefit of the dominus negotiorum, and without his consent. It must not be confounded with mandatum, in which the knowledge and request of the principal was the essential ingredient; nor with the duties of the procurator and defensor, who were only concerned in a negotium judiciale. A woman might be a negotiorum gestor3. 1 Hein. El. 96. 2 Colq. 1764. 3 D. III. 5. 3. 1. IX. The gestor must observe all due care in the per- CHAP. formance of the business in hand'. If it be a case in which he intermeddles without any urgent ne- Gestor, how cessity he will be bound ad diligentiam exactissi- liable. mam, and therefore is liable for culpa levissima; but if he be led to it by the extreme necessity of the case and the probable loss of the dominus negotiorum, he will only then be liable for dolus and culpa lata2; and if the gestor venture to do anything contrary to the usual custom and mode of business of the dominus, or involving more than ordinary risk, he will even be liable for casus3. The gestor must finally render an exact account to the dominus. On the other hand, the dominus negotiorum must repay the gestor all expenses with interest, and take upon himself all liabilities and costs where he has rightly conducted the negotium. If one should undertake the business of a madman, or even make a mistake as to the person whose affairs he was managing, the contract would nevertheless be valid; as if I suppose I am transacting the business of Titius, and it turns out to be that of Sempronius". If the business have been rightly commenced and carried on, the gestor will not be liable for casus". The actions in this case are directa and con- Actions. traria. Directa, on behalf of the dominus negotiorum against the gestor and his heredes to compel them to render a full account, and to indemnify him for any loss occasioned by his negligence. Contraria lay for the gestor against the dominus and his heredes, to indemnify him for all necessary costs and expenses, provided the affair has been utiliter gestum; but if he have expended more money than was necessary he could not recover the excess. 1 D. L. 17. 23. 3 D. III. 5. II. 2 D. III. 5. 3. 9. C. II. 19. 2. 6 D. III. 5. 3. 5. 5 D. III. 5. 19. 4. 8 Id. X. I. 9 D. III, 5. 25. BOOK Tutela. Actions. Rei com munis ad 2. Tutela is a contract between tutor and pupil, by which the former is bound to administer faithfully the affairs of his pupil, and the latter to indemnify the tutor for all expenses incurred in. the execution of his office. The office of tutor involves an implied contract, because the tutor is thereby bound faithfully to administer the affairs of the pupil', and the pupil, on the other hand, to indemnify the tutor for all necessary charges and expenses2. The relative duties of these parties have already been considered3. The actions are directa and contraria; the former against the tutor to compel him to deliver a statement of his account, and to indemnify the pupil for all losses occasioned by his negligence; the latter, to compel the pupil to reimburse the tutor for all expenses incurred on his behalf. A utilis actio lay also directa and contraria, as between minors and curators. 3. Rei communis administratio involved a ministratio. quasi contract between two or more persons to whom the same thing had been given, or left by way of legacy, by which each was bound to divide the thing so possessed in common, and to allow for all extraordinary costs in the care or keeping of Actio com- it. To enforce this the actio communi dividundo muni divi- was established. dundo. Hereditatis tratio. 4. Hereditatis administratio was a quasi conadminis- tract between coheirs to the same estate, by which each was bound to divide the inheritance, and to settle all accounts relating to it, in fair proportion; and this was enforced by the actio familiæ Actio fami- erciscundæ, which lay for one coheir against anlia ercis- others. cundæ. Hereditatis aditio. 5. Hereditatis aditio is a quasi contract quo is qui hereditatem adiit cum legatariis et fideicom |