“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
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
), on which no legal
responsibility is incurred (Dig. 17
). 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
&c.). The person who gives a commission is called mandator
who undertakes the commission is called is qui
or recipit, mandatum, cui mandatum
&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
). 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:
mandatee's action to obtain reimbursement is actio
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
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.
2.13.19). Either party adjudged guilty of
breach of good faith became thereby disgraced, ignominiosus
(Gaius, 4.182), infamia
(Edict. ap. Dig. 3
; 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
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.
) 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
are often discussed together, though their legal
positions were different in several respects (e. g. Dig.
The principal authorities are Cic. Rosc. Am.
; Dig. 17
; Cod. 4.35, 36; Inst. 3.26.
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
), or to their administration (e. g. Dig.
), or even established new rules of private law: e.
g. the validity of a soldier's will, though not in due form (Dig. 29
). These instructions, like the Edicts, appear by frequent
repetition to have assumed the character of standing orders (cf. Dig. 29
); 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
97.7; 111, 112). Cicero applies the term to a legate's
instructions (de Leg.
3.8, 18); and Frontinus
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.