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MANDA´TUM

MANDA´TUM

1. Mandatum, “a commission,” is the name of a contract which arises from consent; i. e. it requires no special form of words, no entry in a ledger, no passing of property or of the possession of property from one party to the other: as soon as the two parties have mutually agreed, the one to employ the other, and the other to be so employed, the legal relation exists, subject however to two conditions. The employment must be one which is not merely for the benefit of the person employed, and payment for the service must not be part of the agreement. If payment is intended, the contract is hiring (locatio, conductio), not mandate: if A suggests to B to do something in B‘s own interest solely, A´s instructions are held to amount merely to advice (consilium), on which no legal responsibility is incurred (Dig. 17, 1, 2, 6). On the other hand, if B does some act for A and in A´s interest, without previous instructions, B may have an action to recover his expenses, but this action is a special one founded simply on the business done (negotiorum gestorum: cf. Dig. 3, 5, 2, &c.). The person who gives a commission is called mandator or mandans; the person who undertakes the commission is called is qui suscipit, or recipit, mandatum, cui mandatum est, &c. (in modern Latin, mandatarius, “mandatee” ). The mandatee is bound to execute the commission diligently and faithfully, or else to renounce it in time to prevent loss to the mandator (Dig. 17, 1, 22, 11). He is to account to him for all profit arising from it. For any expense or loss properly incurred, or strictly incidental, the mandator is liable. The mandator's right of action to enforce fulfilment of the mandatee's obligations to him is actio mandati: the mandatee's action to obtain reimbursement is actio mandati contraria. As a rule the mandate is extinguished by the death of either party, at least if the event be known to the other party and the commission be yet unexecuted. But rights arising from a commission may be enforced by or against the heirs of either party (Dig. 17, 1, 58, pr.). This rule, however, seems in early times to have been doubtful; M. Drusus, the city praetor (under what circumstances we know not), refusing the right of action and Sex. Julius (a successor?) granting it (Auct. ad Heren. 2.13.19). Either party adjudged guilty of breach of good faith became thereby disgraced, ignominiosus (Gaius, 4.182), infamia notatur (Edict. ap. Dig. 3, 2, 1; ib. 6, 5). So Cicero says, “mandati constitutum est indicium non minus turpe quam furti” (Rosc. Am. 38, 111 sqq.); and the heir was eventually held responsible for fraud on the part of his predecessor (Dig. 44, 7, 12).

A special case of mandate, called by modern lawyers mandatum qualificatum, is a request from A to B to lend C money. A was taken to guarantee payment, and B (the creditor) had, if the debtor failed to pay, an action on the mandate (act. m. contraria) against A to recover the money, and then in return ceded to him the creditor's right of action on the loan. A surety proper (fidejussor), on the other hand, was regarded as assuming the responsibility at the instance of the debtor, and, if forced to pay the debt of his principal, had an action of mandate against him (Gaius, 3.127). Hence mandatores and fidejussores are often discussed together, though their legal positions were different in several respects (e. g. Dig. 17, 1, 28; 37; 46, 1, &c.).

The principal authorities are Cic. Rosc. Am. l.c.; Gaius, 3.155 sqq.; Dig. 17, 1; 46, 1; Cod. 4.35, 36; Inst. 3.26.

2. Mandata is technically used of the “commission” or instructions given, especially to provincial governors, by the emperor. These were very various and related to their own conduct (e. g. Dig. 1, 16, 6, 3; 32, 1, 4), or to their administration (e. g. Dig. 37, 14, 7, 1; 47, 11, 6; 22, 1), or even established new rules of private law: e. g. the validity of a soldier's will, though not in due form (Dig. 29, 1, 1). These instructions, like the Edicts, appear by frequent repetition to have assumed the character of standing orders (cf. Dig. 29, 4); and Justinian A.D. 535 further consolidated some such instructions into what is now called the 17th Novel. Pliny in his letters to Trajan refers to them (Ep. 97.7; 111, 112). Cicero applies the term to a legate's instructions (de Leg. 3.8, 18); and Frontinus (Aquaed. 110, 111) quotes from a chapter of the Instructions (ex capite mandatorum) rules for the use of water from the Italian aqueducts (cf. Cod. 1.85; Rudorff, R. G. 1.56).

[H.J.R]

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