The essential characteristics of mandatum

If a member of "the" professions, an advocatus, an agrimensor^[2072] or an architectus,^[2073] did not render his services under a contract of locatio conductio (be it operis or operarum), it did not mean that these activities took place in the purely social sphere without being sanctioned by the law at all.

What was objectionable was to work for money, not to enter into a contractual relationship. If, for instance, an advocate^[2074] took care of somebody else's legal problems, he might consider it to be infra dignitatem to receive a salary. On the other hand, he could expect not to lose out. Thus, he ought to be able to claim damages and to be reimbursed for any expenses that he might have incurred on behalf of his client. The latter, in turn, would often rely on the advocate's undertaking to bring his case to court, to represent him in the trial or to make up a rhetorically convincing argument. Thus, where this sort of commitment was intended, the parties usually entered into a contract of mandatum.

Mandatum, like emptio venditio and locatio conductio, but unlike commodatum and depositum, was a consensual contract.^[2075] Like commodatum and depositum, but unlike the other consensual contracts, it was a necessarily gratuitous transaction: "Mandatum nisi gratuitum nullum est."^[2076] Where a reward was fixed, the contract was locatio conductio, not mandatum: "In summa sciendum est mandatum, nisi gratuitum sit, in aliam formam negotii cadere: nam mercede constituta incipit locatio et conductio esse."^[2077] In fact, the lack of any agreed upon counterperformance is emphasized so often as an essential characteristic of the contract of mandatum, that we may well doubt whether the actual practice was always in conformity with contractual theory.

A contract of mandatum gave rise, in any event, to the actio mandati (directa).

This was a iudicium bonae fidei and lay for "quidquid ob earn rem N^m N^m A° A° dare facere oportet ex fide bona".^[2078] Thus the mandator was able to enforce proper execution of what the mandatarius had undertaken to do;^[2079] apart from that, the mandatarius had to hand over to the mandator whatever he received on account of or in the execution of the mandate.^[2080] The mandatarius, on the other hand, could sue the mandator only if, in the course of carrying out the mandate, he had incurred expenses^[2081] or suffered damages.^[2082] To this end an actio mandati contraria, with a formula identical to that of the actio mandati directa,^[2083] was available to him. This did, however, make mandatum neither a (perfectly) bilateral^[2084] ^{^[2085] nor a reciprocal contract. The counterclaim was not bound to arise, but depended upon the circumstances of the case; and the mandatory did not agree to carry out the commission in order to obtain reimbursement of expenses or compensation for damages. 2.}

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

The essential characteristics of mandatum

More on the topic The essential characteristics of mandatum: