Mandatum (Mandate, Commission or Agency)

Nowadays we hear of mandates chiefly between constituencies of various kinds and their spokesmen. As for instance in national politics, industrial relations, or in university politics.

The Latin verb mandare comes from manus (hand) and dare (to give). It means �to entrust’ or �to commission’. Other translations also serve. But the root idea is plain: putting something into someone else’s hands. More particularly, putting some task into someone’s hands. Buying a house for me, extending credit to my friend, pursuing a claim against my enemy.

In the language of agency the person who gives a mandate is a �principal’. And its recipient is the �agent’. As we shall see there are differences between mandate and modern agency. In token recogni­tion of those differences it is as well to say mandator rather than �principal’. But on the other side �agent’ is more convenient than mandatarius, itself not used by the Romans, and certainly more familiar than �factor’.

The action of the mandator was the actio mandati directa (the main action on mandate); and the agent had the actio mandati contraria (the counter action on mandate). Subject to changing the parties over the wording was the same in either case:

Whereas Aulus Agerius mandated Numerius Negidius to..., which matter is the subject of this action,

whatever on that account Numerius Negidius ought to give to or do for Aulus Agerius ex fide bona,

for the value of that let the judge condemn Numerius Negidius to Aulus Agerius; if it does not appear, let him absolve.^[31]

i. The demonstratio

What facts would substantiate the allegation that a contract of mandate had been made between these two parties? The defendant agent must have agreed to do something at the plaintiff mandator’s request. The dots in the formula represent the task to be done. That gerundive construction (a house to be sold, a slave to be bought) is common in the texts on mandate. But it should especially recall hire and, in particular, locatio operis faciendi.^[32]

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The most obvious way of getting something done is to pay. But the most striking feature of mandate is that it must be gratuitous. If the agent is paid or otherwise rewarded the contract cannot be mandate but must be hire or something else. It follows that we have to adjust our image of the contract.

The model on which some texts draw is founded on friendship, amicitia. Friendship entails, and indeed feeds on, reciprocal duties. The mandator is one who makes a call on the friendship of another. His mandate so to say cashes a credit on this non-commercial plane. This is the right picture, so long as the role of amicitia is not exaggerated. The law’s intervention in and around gratuitous services needs some explanation. Why should a man be liable at all if unrewarded? The answer is the need for mutual solidarity, the same good which friend­ship also promotes.

The line between mandate and hire depends on the presence or absence of reward. There are also lines between mandate and other gratuitous figures. Among obligations quasi ex contractu we will find those arising from uninvited intervention in another’s affairs (negotiorum gestio)^[33] Here the word �uninvited’ is crucial. If you mend my roof when it springs a leak while I am away on holiday there is no contract between us. That is negotiorum gestio, an uncommissioned service, the content of mandate without the mandate itself. Suppose I had asked you to meet all such emergencies. That would be enough to turn it into mandate. Or suppose that you stand surety for me and I know but do nothing to forbid you. By hanging back I tacitly request the intervention; and that is enough to make it mandate (D. 17.1.6.2 = Ulpian, 31 On the Edict).

If I deposit a case with you and pay you, that will be hire. If I do not pay it will be deposit, another gratuitous contract. The titles on deposit and on mandate (D.16.3 and D.17.1) both contemplate the line between mandate and deposit. They do not say that every deposit is also a mandate, which would release the tension. But no satisfactory distinction is propounded. It is certainly difficult to say why a deposit should not be regarded as a mandate to keep, and pleaded as such. Down this path lie quite awkward questions about the need for an independent contract of deposit.

There is obviously a difference between advice and encouragement on the one hand and mandate on the other. If I say, knowing that you have £5,000 in your bank doing nothing, that you could do much better to have it on deposit or in a building society, I would not take myself to be mandating you to invest. We will see that one effect of mandate is to give the agent a right to an indemnity.

The commonest case in which my communication to you should be construed as mere advice and no mandate is where only your own interest is at stake, which your own judgement should assess. But there may have been a less sensitive time, namely that there could never be a mandate if the agent had any interest at all in the performance. This is what Gaius says (G.3.155-6):

155. There is a valid mandate in both the case where we give a mandate in our own interest (nostra gratia) and the case in which we do it for a third party’s interest (aliena gratia). Hence if I give you a mandate to conduct my business or the business of another, the obligation of mandate is contracted. The result is that we are bound one to another to make good to each other whatever we ought in good faith to answer for... 156. If in fact I give you a mandate in your own interest, the mandate is futile (supervacuum). For if you are going to do something in your own interest (tua gratia) you ought to do it on your own judgement (de tua sententia) and not in reliance on a mandate from me (ex meo mandatu). So if I encourage you to lend at interest money which you have idle at home you will not have an action on mandate against me even if you lose your money to a dud borrower. Or again, if I encourage you to buy something which turns out to be no use to you, I will not be liable in mandate. And this is carried to the point at which there is a question whether someone is liable in mandate if he mandates you to lend to Titius at interest. Servius said no. He thought there could no more be an obligation in this case than where the commission was to lend out generally. But we follow the opinion of Sabinus who held the contrary view, on the ground that you would not have lent at interest to Titius but for the mandate given to you (quia non aliter Titio credidisses quam si tibi mandatum esset).

The reason given at the end is horrible. For it is equally true of both cases that my intervention may have been the decisive factor. That is, if your strong preference is for keeping your money under your bed, it can as a matter of fact be true, whether I say �Lend it out' or �Lend it to Titius', that you would not otherwise have lent it.

One way out of this problem is on these lines. The original objective was to stop people trying to shift responsibility for losses by turning advice into mandates. A test was advanced which made the inquiry of fact into an inquiry of law: was the alleged mandate in the interest of the agent himself? If it was then (whether or not the advice had been decisive as a matter of fact) there could be no legal mandate. As a matter of law a person was under a duty to proceed in matters affecting his own interest on the basis of his own judgement (id de tua sententiafacere debes). This raised a question. What if the agent had some interest but that interest was mixed with an interest on the part of either or both the mandator and a third party, as where the mandator wanted money lent at interest to a third party? Servius kept to the rule of law: no mandate where the agent had an interest. Sabinus said the rule of law gave way where the interests were mixed, but left the question of fact whether it was the mandate or the attractiveness of the venture which moved the agent. That is, where the interests were mixed, there could be a valid contract of mandate so long as on the facts it was as an instruction and not as advice that the alleged mandate was perceived.

This pattern of development is partly speculative. It goes some way towards explaining the complex divisions of mandate according to the interests involved, as at D.17.1.2 (Gaius, 2 Nuggets) and J.3.26.1-6. And it also seems compatible with what is said in the last cited passage from Justinian's Institutes.

These difficulties are best sealed up by citing one clear and vivid example which shows the Sabinian view (that there could be a man­date where the interests were mixed) in application.

This question has been put. If someone mandates me to do something on my own property and I do it does the actio mandati lie? Celsus, in bk. 7 of his Digesta, says that he gave a responsum to this effect: Aurelius Quietus's doctor had a garden estate at Ravenna to which Aurelius used to adjourn every year. When he was staying with the doctor it is said that Aurelius gave him a mandate to build a gym and a sauna bath and to do other works to provide health-giving facilities, all at Aurelius’s expense. On these facts the actio mandati lies for the recovery of the outlay, subject to a deduction allowing for the improved value of his own buildings.

Here it is obvious that the old rule supported by Servius would have led to the opposite conclusion because the doctor agent had an interest in the improvement of his estate. But the interests were mixed. Aure­lius enjoyed the air at Ravenna and wanted his host’s facilities improved. And in the classical period Celsus had no difficulty in saying that the action would lie to reimburse the agent.

ii. The intentio

What could the plaintiff claim as owing in good faith on account of the mandate? In the actio directa (the main action) the mandator was con­cerned with the performance of the mandate and the render up of all that was acquired in the performance. It is convenient to take the render up first.

It is obvious that the agent must make over the very res he was told to get once he obtains it. So, if the mandate is to buy a house and the house is conveyed to him, then he in turn must convey it over to the mandator. But it does not stop there. He must also make over any actions he has against the vendor or against third parties as for example for damage done to walls or trees. And he must restore any produce of the land which he has taken during the period of his possession.

An agent who finds himself in possession of his principal’s money is easily tempted to put it to work by lending it out at interest for a short term or by putting it to his own purposes, as into his own business. Either way he will have to account for the profit, either what he actually received or interest in lieu. D. 17.1.10.3 (Ulpian, 31 On the Edict):

If my agent has money of mine he will certainly have to pay interest in case of delay (mora). But also if he puts my money out at interest and receives the instalments of interest, we shall have to draw the conclusion that he must make over whatever profit comes his way whether within the scope of my mandate or not. For this is a principle of good faith: not to make a profit from other people’s wealth (quia bonae fidei hoc congruit, ne de alieno lucrum sentiat). But if he does not put the money to work but applies it to his own uses, he will nonetheless be liable for interest at the statutory rate prevailing in the district.

A variation on this theme is provided by the agent who, instructed to lend gratis, in fact lends at interest. Even though the interest is outside the terms of the mandate yet, in accordance with the principle set out by Ulpian in this passage, the agent must give it up. That case is reached a few paragraphs later, at D.17.1.10.8.²³

So far as concerns performance the first principle is that the manda­tors claim for failure to perform extends only to his financial interest. If he has none, no claim. From the agent's side one way of putting that is to say that his obligation is not to cause loss by non-performance. Thus he can withdraw re integra. That is, if the mandator has time to rearrange the affairs without financial prejudice, he must accept the agent's renunciation of the mandate.

Once the mandator has an inextricable interest in the performance the agent must make good any loss from non-performance. And he must take care to keep within the terms of the mandate. For if he is told to buy peas and yet buys beans he will still be liable for non-perform­ance in regard to the beans. And small deviations can produce dramatic effects. If I mandate you to sell �for 100’ (not �up to 100’ or �as near to 100 as possible’) and you sell for 90 I shall be able to vindicate the res from your purchaser and he will attack you for his eviction, and you will have no remedy against me. D. 17.1.5 pr.-3 (Paul, 32 On the Edict):

Diligenter igitur fines mandati custodiendi sunt (Therefore the limits of a mandate are to be carefully observed). 1. For one who goes outside his terms is understood to make a quite different performance and is liable if he fails to fulfil the task which he undertook. 2. And so if I mandate you to buy Seius’s house for 100 and you buy Titius’s house, much more valuable, for 100 or even less, you will not be taken to have fulfilled your mandate. 3. Again, if I mandate you to sell a farm for 100 and you sell it for 90, then if I bring a vindicatio for the farm (si petam fundum) no defence will impede my claim unless you make up to me what is lacking from my mandate and hold me free from any loss arising.

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Ulpian, 31 On the Edict.

What about bad performance which causes loss to the mandator? Sup­pose the agent fails to take care of the res he has bought or defends an action so dilatorily that the case is lost. There is no doubt that if this kind of prejudicial performance resulted from dolus the agent would be liable. According to the principle that is applied in deposit which excludes liability for culpa where the defendant is to perform a gratuit­ous service, one would expect liability to be confined to dolus at least where the agent has no interest. But some texts do speak of a culpa liability, and it is certainly not impossible that the fundamental prin­ciple of adherence to good faith could have been developed to produce a liability for unreasonable behaviour short of dolus.

The main business of the actio contraria (the counter-action on mandate) was to obtain reimbursement of the outlay. We have seen one example in the case of Aurelius Quietus who evidently would not pay his doctor for the works done to improve his country retreat. Another is D.17.1.12.9 (Ulpian, 31 On the Edict):

If you have mandated me to buy something for you and I have bought it out of my own money, I shall have the actio mandati to recover the price. But even if I buy with your money I shall have the counter-action for anything bona fide spent on the purchase of the thing. And I shall also have the action if you will not take the res off me. And the law is the same in other mandates which involve me in expense...

Here too the need to attend to the limits of the mandate was brought home to the agent. If he exceeded the mandate he would lose his action for expenses. There was a school dispute on the question whether if the agent exceeded the authorised outlay he might volun­tarily bear the extra himself. The Proculian view prevailed. G.3.161 (see also J.3.26.8):

I give you a lawful mandate. You exceed the terms. I have an actio mandati against you, provided you could have performed, for the amount of my loss from not having the mandate fulfilled. But you have no action against me. For example if I mandate you to buy a farm for 100 sesterces and you buy it for 150 sesterces you will not have an actio mandati against me even if you are willing to give me the farm at the price at which I mandated its purchase. This opinion was very strongly held by Sabinus and Cassius. But if you buy for less you will have your action against me without a doubt. For one who mandates a purchase at 100 impliedly mandates it to be bought cheaper if possible.

However in the Digest (D.17.1.4)²⁴ an extract from Gaius's Nuggets affirms that Proculus correctly thought the agent should have the action, carrying the excess himself. That view is said to be benignior, milder or less fierce. Justinian's Institutes say the same.

The contract was discharged by death of one or other party. What would happen then if the agent brought the actio contraria for expenses against the heir of the mandator and it appeared that the outlay had happened after the death of the mandator? Logically he should lose. For the expenses so incurred were not referable to any mandate. But logic did not prevail. The kind of argument which we call sensible or expe­dient (as opposed to logical) the classics referred to as utilitas (as we might say to �sound policy'). So Gaius says (G.3.160; see also J.3.26.10):

... sed utilitatis causa receptum est (but it has been accepted on the basis of sound policy) that, where I perform a mandate after, and in ignorance of, the mandator's death, I can bring the actio mandati. Otherwise reasonable and demonstrable want of knowledge will cause me loss.

iii. Special applications

There are two special contexts which need to be mentioned and in fact deserve extended treatment though they cannot have it here.

A. Mandate and suretyship There are two ways in which the contract is crucial in the picture of personal security. First, it is the chief means (leaving aside the old actio depensi based on the lex Publilia) by which a surety obtains an indemnity if he has to pay up. In all but rare cases a surety takes on his role as a result of a mandate from the principal debtor. �Will you guarantee my loan?' is a typical approach. So, when the guarantor agrees and enters into his contract with the creditor he does it under a mandate. And he has the action to recover his expenses. That is, if performing the mandate involves him in an outlay, he has the action to get it reimbursed. And being made to pay up is a guarantor's most obvious expense. He turns on the principal debtor under the contract of mandate between them.

Secondly, mandate can displace stipulatio as the means of giving a guarantee. That is, it can establish the relationship between guarantor and creditor as well as between guarantor and principal debtor. �Lend

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Gaius, 2 Nuggets.

to Titius' or, thanks to the victory of the Sabinian view, â€?Lend to X at interest' makes the lender to X my agent acting under my mandate. If he, the lender, fails to recover his loan then that is an expense under the mandate which he can recover from me. From there it proved possible to develop an informal contract of guarantee of no less import­ance than the stipulatory forms which we have already looked at.²⁵

B. Mandate, litigation and agency At G.4.82-7, Gaius describes the law's attitude to representation in litigation. And it is remarkably relaxed. This has nothing to do with legal support but with substitution of one party for another. You can sue out my claim or defend a claim against me. You can do it by appointment—you will be a procurator ad litem or cognitor ad litem depending on the mode of appointment—or by unin­vited but bona fide intervention, a common example of negotiorum gestio. Standing in my shoes, you will have to make over to me the product of the litigation and I will have to keep you free from loss. Once again the chief vehicle is the contract of mandate, though the actions for inter­vention in another's affairs (actiones negotiorum gestorum) have to do the work if the substitution is unauthorised.

This contractual representation makes it possible in effect to assign a claim. I want you to have my claim against X. I appoint you to represent me in the litigation. You recover. I do not insist on the accounting over to me. Indeed if the agreement was such that in substance the matter became yours I would not be able to claim the account even if I wanted to. Formally a representative of me, in substance about your own business, you would be called a representa­tive in rem tuam, a representative in your own affair.

This same device of transferring the action through representation in litigation arranged by mandate served to supply the omission of any perfect law of agency. By �perfect' is meant a system of agency in which the agent creates legal relations between his principal and the third party in such a way as himself to drop out: Principal tells Agent to order goods from Wholesaler; Agent does it; Principal has a contract with Wholesaler. Roman law could see that being done where the middle man was only a messenger, a nuntius, but not where he had to do the bargaining and fix the terms.

The Roman scheme was for Principal-Mandator to mandate Agent to contract with Wholesaler. Result: Wholesaler in contractual rela­tions with Agent who in turn works under mandate from Principal. But by a simple litigation-mandate, Agent can put Principal in a position to sue Wholesaler in rem suam, as a representative about his own business. Principal appears in the action as his own agent's agent under the mandate back to himself. But that is an analytical, not a substantial truth. In substance he is suing on his own affair. And the double mandate (to the agent to bring, back to the principal to sue) only looks complicated. It is easily done.

This mechanism of double mandate only works as a means of allowing Principal to sue on Agent's contract. If Wholesaler wants to sue he has still to sue Agent, who has to rely on his right of indemnity against Principal. In this matter of suing through to Principal the only direct route was provided by the Praetor and then only in those circumstances covered by the �additional liability actions (actiones adiec- ticiae qualitatis)'.

To give a complete picture of Roman mechanisms which substitute for perfect agency it is necessary to put together three pieces: the law relating to contracts made by those in power, including slaves, the law of mandate and in particular of the device of double mandate just described; and finally the law of these praetorian actions with an additional liability. The praetorian actions deal both with family agents and outside agents. Their business is to bring liabilities home to the principal, rights being accessible to him more easily either as paterfamilias or as representative in rem suam.