Mandatum

The fourth and last of the consensual contracts was mandate (mandatum). This came to the fore when an agreement was reached whereby one person (the mandator) gave another person (the mandatary or mandatarius) a commission to do something gratuitously for him, and the mandatary accepted the commission.^{^[843]} The relevant agreement could be formed in any manner (orally, tacitly, in writing or through a messenger) ^{^[844]} The gratuitous nature of mandatum, which distinguished it from the contract of locatio conductio operis, is explained on the grounds that the mandatary essentially performed a favour for a friend and, according to the moral code of the Romans, it was his duty to help friends free of charge.^{^[845]} However, in the course of time it became an accepted practice to pay the mandatary a fee (honorarium or salarium) for his selfless service, and this was not considered contrary to the spirit of the mandate.^{^[846]}

Virtually any kind of clearly defined service, whether of a factual or legal nature, could be requested under a mandate as long as it was not illegal, immoral or impossible.^{^[847]} Such service might pertain to the performance of a single task, such as the mending or cleaning of clothes, or the management of the affairs of the mandator in general.

Furthermore, the mandate had to serve the interests of the mandator or of a third person, jointly or severally. A mandate that produced some benefit for the mandatary was still acceptable, but a purported mandate for the exclusive interest of the mandatary was void and regarded as only free advice.^{^[848]}^{^[849]}

Mandate was an imperfectly synallagmatic or bilateral contract, in the sense that the duty of the mandator was a contingent one whilst that of the mandatary arose immediately upon the conclusion of the contract.

As in the case of other consensual contracts, the mandate originated from the ius gentium and was therefore governed by the principle of bona fides²¹⁹ It is important to observe at this point that the mandatary did not act as the mandator’s agent or representative. Thus where the mandatary entered into a contractual relationship with a third party, the mandator was not directly affected by it, even if such relationship had been concluded during the execution of the mandate.^{^[850]}

The principal duty of the mandatary was to carry out the mandate properly and to hand over to the mandator all benefits he acquired during its execution, including rights of action against third parties.^{^[851]} As the mandatary was originally considered to be a trusted friend performing a gratuitous service, the early law limited

his liability to dolus and culpa lala²'² However, in later classical law this liability was extended to include culpa levis in abstracto, which meant the mandatary had to exhibit the diligence of a bonus paterfamilias^2,83 If the mandatary did not comply with his obligations, he could be sued by means of the actio mandati (directa). This action was aimed at restitution of the gains the mandatary acquired in carrying out the mandate or at compensation for damages owing to his fraudulent or negligent conduct. Condemnation in this action led to infamia.^{^[852]}^{^[853] ^[854]}

Occasionally, the mandatary incurred certain expenses or suffered loss or damage in the performance of the mandate. Provided that these expenses were necessary and he had not exceeded the mandate,^{^[855]} he could institute the actio mandati contraria against the mandator to claim reimbursement of expenses or damages.^{^[856]}

The contract of mandate was terminated when the mandate had been carried out or when the prescribed time period for its performance had elapsed. Furthermore, either party could revoke the contract provided that execution of the mandate had not yet commenced.^{^[857]} Finally, a mandate could be terminated by the death of either party.^{^[858]}

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Mandatum

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