The gratuitousness of mandatum
(a) Officium et amicitia
"Mandatum... originem ex officio et amicitia trahit."14 It was the extralegal social-value system of the Romans which accounted for the (relative) popularity of this type of contract.
The (wealthy) Roman citizen, when called upon to take care of some matter for another person, felt honour-bound to carry out the task entrusted to his charge. He acted altruistically, in accordance with what could be expected of a man of his status and conforming to a code of ethics based on pietas, fides, reverentia and amicitia. He did not act for personal gain. Thus, he did not ask to be paid. Nothing, however, could ^prevent the mandator from showing his gratitude by way of a present.[2086]’If there was a moral duty on the iuris consultus to give an expert opinion to a friend who approached him, the latter was similarly obliged somehow to remunerate him for this service;[2087] it it was a matter of honour for the mandatarius to act on behalf of the mandator, there was nothing wrong with the latter providing an honorarium in return for the services rendered: a visible sign of his estimation, with which he, in turn, honoured the mandatarius. This honorarium, as it came indeed to be called,[2088] was a "remuneration" in the true sense of the word: a present given for a cause ("munus"), namely (in this instance) in return for a service.[2089](b) Payment of an honorarium
So much emphasis on liberality and altruism sounds impressive but—considering the realities of daily life—also somewhat hypocritical. Take again the "free" professions such as the advocacy. By the time of classical law, an advocate expected to be remunerated for his services, and the giving of an honorarium had become generally accepted practice.[2090] However, the contractual relationship was still regarded as a mandatum, with the consequence that such payment was not legally owed (and could not be enforced).
The reason for this seems to have been that the advocacy and the pursuit of the other artes liberates was still not regarded as a "profession".2" "One" did not have to work in order to earn one's living. Instead, one was able to devote one's time to serving the community by playing an active role in public life. The wealthy, well-connected Roman citizen of the time of the Republic tried to pass through the so-called cursus honorum,21 until one day he became consul, proconsul, senator and elder statesman. These offices were not regarded as paid jobs, and the political independence of the office-bearers was always based, to some extent, on their material independence. Thus, it was one's leisure that one devoted to the public weal. The same applied in private affairs. If one took care of some matter for another person, one gave of one's free time. Any remuneration was therefore in the nature of a present, rather than a price for the time and trouble taken. That time did not have a price because it would in any event not have been invested profitably (in a material sense).22(c) C 4, 35, 1
If we have repeatedly referred to the impersonal "one", it was in order to indicate that to some degree (and increasingly so, with the withering away, in the course of time, of the old Roman value system) we are dealing with a pose. Many of the artes Hberales had become profitable occupations, and many of those practising them made their living from the honoraria earned. Still, they preferred to be seen as generous and altruistic friends and counsellors. It was only in the course of the Principate that most of these social perceptions changed—changes which we finally find acknowledged and accommodated in late classical jurisprudence.
"Adversus eum cuius negotia gesta sunt", we read in a rescript inscribed Severus and Antoninus,23 "de pecunia quam de propriis opibus vel ab aliis mutuo acceptam erogasti, mandati actione pro sorte et usuris potes experiri.
de salario quod promisit a praesidc provinciae cognitio praebebitur."The first sentence tells us nothing new. The mandatarius, in carrying out the mandate, has spent a sum of money. The actio mandati allows him to claim reimbursement of the capital and interest. But what about the "salary" that the mandator had promised? It cannot be sued for under the normal formulary procedure. However, the mandatarius is no longer without legal protection, for he will be able to proceed via the more modern and informal cognitio extra ordinem.
(d) Receipt of a solarium
By the time this rescript was drafted, receipt of a certain, predetermined sum of money in return for one's services no longer appeared to be in any way degrading. On the contrary: the term "salarium" carried
j Cf. e.g. Berger, ED, p. 422.
~ Cf. Michel, Gratuite. p. 188.
3 C. 4, 35, 1. According to Tony Honore, Emperors and Lawyers (1981), pp. 97, 56 sqq., this rescript was drafted by Papinian, the then secretary a libellis. distinctly aristocratic connotations and cannot, for instance, simply be equated with its modern English or French derivatives "salary" or "salaire".2* The term "salarium" itself derives from "sal"[2091] [2092] and can best be translated as salt-money. We only have to refer to St. Matthew 5, 13 ("Ye are the salt of the earth") in order to appreciate the high value set on salt in antiquity.[2093] Its importance as an indispensable spice was often stressed; in Rome it also had a specific sacral significance, for it was an essential ingredient of the so-called mola salsa.[2094]
But it was not only the term "salarium" as such that was free of low-class connotations. Since the time of Augustus, imperial functionaries of senatorial or equestrian rank outside Rome were in receipt of a fixed salarium; they had become "salaried" officials.[2095] According to Cassius Dio,[2096] a proconsul, for instance, received an annual sum of one million sesterces.
These reforms constituted a significant break with the old idea of the important magistracies necessarily being gratuitous offices, and they did not leave the general social estimation of gratuity unaffected. If it was not demeaning for a former consul to administer one of the senatorial provinces for payment, how could it be socially objectionable for an advocate or a doctor to ask for a reward for their professional services? Thus, there was increasing pressure to make salaria that had been agreed upon for private services legally exactable too. This seems to have happened, first of all, in the case of procurators.[2097]Originally, the procurator[2098] omnium bonorum had been a freedman, sometimes even a slave, whom wealthy people used to have as a general manager of their property. Legal relationships between the patronus and his libertus, the dominus and his slave, did not exist. Nevertheless, both patronatus and patria potestas involved reciprocal (moral and social) duties, and thus the dominus negotii was expected either to allow his procurator enough free time to earn his own living, or he had to feed him. With the general dissolution of the extra-legal power relationships and with the corresponding rise of the procurator's social esteem, it became acceptable to base procuratio omnium bonorum on a mandate.512 Of course, the procurator could not be expected to devote all his time to the administration of somebody else's property without any recompense. Thus, it became customary to give him, at regular intervals, instead of food, a sum of money: salarium in the place of (pars pro toto:) sal. By the time of Papinian, the claim for such a salarium had become legally enforceable.5 The same applied to the salaria or honoraria of the members of the "liberal" professions.[2099] [2100] [2101] Advocates, incidentally, seem to have been particularly greedy, as we can see from the repeated attempts of various emperors to fix maximum limits for their professional charges.[2102] All in all, then, by the end of the era of classical law, the lawyers had worked out a characteristically Roman solution. (e) Mandatum nisi gratuitum nullum: the ins commune Nevertheless, one cannot help remarking that the gratuitousness of mandatum was by now a matter of form rather than of substance. This must have become particularly obvious at a time when the distinction between formulary procedure and extraordinaria cognitio had vanished. Many authors of the ins commune still maintained the principle of "mandatum nisi gratuitum nullum est". On the other hand, they faithfully recorded that an actio extraordinaria was available for the recovery of salaria or honoraria that had been promised. But what was the practical relevance of hanging on to outdated procedural niceties? And if there was none, how could one still seriously maintain that mandatum was gratuitous? Various solutions were suggested to resolve this problem. Thus, for example, a distinction was drawn between mandate and an innominate contract of the type of facio ut des,38 depending on whether a remuneration for the professional services had been promised or not.[2105] Others tried to distinguish between honorarium ("voluntaria operae gratis praestitae remuneratio")[2106] and salarium ("[sjalarium... "I seek out a famous lawyer, in order to ask him to assume the defence of my case: he replies that he is willing to undertake it. I thank him for his reply, and I tell him that, to give him a slight indication of my gratitude,[2111] I will present him with Meerman's Thesaurus, which does not figure in his library. He replies that he willingly accepts my present which I offer him with such good grace. Now, although I promise the lawyer Meerman's Thesaurus, the contract existing between us continues to be a contract of mandate, because what I promise to give him is not the price to be paid for the defence of my case which he has undertaken. The defence of my case which he undertakes, is something to which a specific value cannot be attached, and the mandate continues to be a contract of mandate...." A few lines later, however, it becomes obvious how tenuous this argument really is: for here the same author is prepared to admit that there are, none the less, certain services for which, even though they belong to a liberal profession and in consequence fall under a contract of mandate rather than one of hire, those persons who have rendered them are allowed "en justice" to ask for the normal reward.[2112] Finally, therefore, there were those who abandoned all this camouflage[2113] and recognized that mandatum was not necessarily gratuitous after all, and that the actio mandati (contraria) could be used to claim whatever remuneration had been promised. This view was based on a (mis-)interpretation of texts such as Ulp. D. 17, 1, 6 pr.,[2114]on old Germanic customs[2115] or simply on the changed perceptions and practices of modern business life.[2116]» [2117] It was adopted, in the course of the 19th century, by a whole variety of drafts and codifications,[2118] including the first draft of the BGB.[2119] But in the end, as far as Germany is concerned, classical Roman law prevailed again. According to § 662 BGB, it is essential for a mandate that the mandatary binds himself gratuitously to take care of some matter for the mandator entrusted to him by the latter. The "quaestus liberales", however, were subjected to the regime of locatio conductio (operis or operarum, as the case might be):[2120] against strong opposition from both the medical and legal professions.[2121] Yet, in common parlance, the terms "Mandat" and "Honorar" live on, particularly with regard to services rendered by lawyers.[2122] [2123] [2124] [2125] 3.
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