Mandate

							 Gratuitous services in the Roman world

• Titius gets the famous advocate Hortensius to defend
  him in trial. Is this a locatio conductio of some sort?
• Socially unacceptable: merces = mercennarius. Which
  contract then?
• Mandatum nisi gratuitum nullum est. Honorarii,
  remunerationes.
• Why if gratuitous we consider it a contract, who can
  sue for what?
• Mandator: performance, reimbursement. //
  Mandatarius: expenses, damages.
         Liability of the mandatory
• Which standard? dolus? dolus and culpa?
• Criteria: a) the balance of interests; compare with deposit and
  commodatus; b) infamia
• Mod. diff. Coll. 10.2.3: In mandati vero iudicium dolus, non etiam culpa
  deducitur. … (in the trial on mandate, the fraud but not negligence is
  examined
• Ulp. 29 Sab. D. 50.17.23: Certain contracts only involve fraud, others
  involve both fraud and negligence. Those which involve fraud are
  deposits and transfers under a precarious title; those which involve
  both fraud and negligence are mandate, loan for use, sale, pledge,
  hiring, and also the bestowal of dowry, guardianship, and the
  transaction of business. ...
• Contradiction?
• Altruistic and not so altruistic mandatarii
• The double side of the liability standard of the mandatarius: in the
  action against him; in his own action against the mandator.
          Liability of the mandator
• I commission you to undertake my defence in trial, you do so, and fail
  to win my absolution. Can you sue me for the expenses?
• Yes, unless you've lost because of your own negligence.
• If because of being in Rome for my sake, a slave of yours dies
  because of an epidemic spreading through the city, can you sue me
  for the damages?
• Afr. 8 quaest. D. 47.2.62.5: But, with reference to what concerns the
  action on mandate, he says that he doubts whether it should also be
  held that all damages should be made good. And, indeed, this
  principle should be observed even more than in the preceding cases;
  so that if he who gave the order for the purchase of a certain slave did
  not know that he was a thief, he will, nevertheless, be compelled to
  make good all damages sustained; for it will be perfectly just for the
  agent to allege that he would not have suffered the damage if he had
  not received the order.
          Restrictive approaches
• Paul. D. 17,1,26, 6-7: A mandator cannot make a charge of all the
  expenses which he may have incurred; as, for instance, where,
  because he has been robbed by thieves, or has lost property by a
  shipwreck, or he, or the members of his family, have been attacked by
  disease, he has been compelled to incur expense; for these things
  should be rather attributed to accident than to mandate. ...
• Paul. 3 Nerat. D. 46,1,67: After having made use of an exception,
  which should have benefited you, an unjust decision was rendered
  against you. You can recover nothing by virtue of the mandate, for the
  reason that it is more equitable that the wrong done to you should not
  be redressed rather than be transferred to another; provided that,
  through your own negligence, you caused the unjust decision to be
  rendered against you.
Exceeding the terms of mandate
• A commissions B to purchase an estate for 100,
  and B buys it for 120. Preliminary question: can the
  seller sue A for the price?
• Indirect agency: mandate does not concern third
  parties nor changes their position.
• Is A obliged to pay the 120 to B?
• If B is ready to transfer the farm to A for 100, can he
  force A to accept it?
                       I. 3.16.8
• He who executes a mandate ought not to exceed its
  terms; as, for example, where anyone commissions you
  to purchase land, or to become surety for Titius for a
  hundred aurei, you should neither purchase for a larger
  sum, nor become security for a greater amount;
• otherwise, you will not be entitled to an action of mandate
  against him; so that, as held by Sabinus and Cassius, you
  would bring suit to no purpose, even if you wished to do
  so for only a hundred aurei.
• Authors of the other school hold that you have a right to
  bring suit up to a hundred aurei; and this opinion is
  certainly the more liberal one.
      Paul. 32 ed. D. 17.1.3.2
• If I fixed the price, and you bought the article
  for more, certain authorities deny that you
  will be entitled to an action on mandate,
  even though you are ready to pay the
  amount of the excess; for it is unjust that I
  should lack an action against you if you were
  unwilling to do so, but that you should have
  one against me if you are willing.
             Mandatum tacitum
• A being absent from Rome, B, knowing that a trial
  against him will take place, undertakes his defence
  without being asked. Quid iuris?
• Negotiorum gestio, if anything. More restrictions to ask
  for the damages and expenses, higher liability
• Never mandate?
• He writes informing of his intentions, and A does not
  answer. Knowing and not preventing
• Useful solution to the problem of regress in collateral.
     Mandatum tua tantum gratia
• You are willing to buy some land, and I advise you to buy a certain
  plot in northern Africa from a friend of mine, immensely fertile land I
  assure you. You buy it, and it turns out to be extremely arid. Was this
  mandate? Can you sue me for the damages?
• Gai. 3.156: If, however, I direct you to perform some act for your own
  benefit, the mandate will be to no purpose, for what you are about to
  do for your own advantage should depend on your own judgement,
  and not be done on account of my mandate. Therefore, if you have
  some idle money at home, and I advise you to lend it at interest, and
  you lend it to a party from whom you cannot collect it, you will not be
  entitled to an action of mandate against me. Again, if I advise you to
  purchase some article, even though it will not be to your advantage to
  do so, I will still not be liable to you in an action of mandate. ...
          Mandatum qualificatum
• A friend of mine needs credit, and I send it to you, with a letter of
  recommendation, expressly stating that I undertake the risk of him
  being insolvent. Is that a mandate? Can you sue me if my friend is not
  able to pay?
• Gai. 3.156: ... These rules have been so well established that the
  question arose whether a party is liable in an action of mandate who
  advised you to lend money to Titius. Servius denied that liability is
  incurred, and thought that an obligation could not arise in this
  instance, any more than in one where a person is generally advised to
  lend his money at interest. We, however, adopt the contrary opinion of
  Sabinus, for the reason, that you would not have lent money to Titius if
  you had not been advised to do so.
• What is the practical use of this kind of mandate?
• Inter absentes, free from trial consumption
    Mandatum morte dissolvitur
• I have been summoned by some creditors to appear in
  court in Rome on January 1st. Knowing that you are
  travelling to Rome, I commission you to undertake my
  defence. You die in the trip, and as a consequence, I am
  declared indefensus by the magistrate, and all my
  property in Rome is seized. Can I sue your heirs for the
  damages?
• Gai. 3,160: Again, if before a mandate was begun to be
  executed, the death of either of the parties should take
  place, that is the death of him who gave the mandate, or
  of him who received it, the mandate is annulled.
  Mandatum morte mandatoris, non etiam mandati
        actio solvitur (Paul. D. 17.1.58pr.)

• If before your death you had already won my absolution,
  can your heirs sue me for the expenses?
• Paul. 4 quaest. D. 17.1.58pr.: mandatum morte
  mandatoris, non etiam mandati actio solvitur
• What, if it is me who dies, and you carry on with the
  commission. Can you sue my heirs for the expenses?
• Gai. 3.160: However, for the sake of convenience, the
  rule has been adopted that if the party who gave me the
  mandate should be dead, and I, being ignorant of his
  death, should execute the mandate, an action of mandate
  can be brought against me; otherwise a just and natural
  want of information would occasion me loss. ...