(a) Factual and contractual activities of the mandatarius
All the other features of mandatum either follow from what has already been set out or from general principles. Mandatum, in a way, was a counterpart to locatio conductio: depending on whether or not a reward had been fixed for the carrying out of the commission, the transaction fell either into the one or the other contractual niche.57 Mandate therefore covered a wide range of situations.
The mandator could request the mandatary to clean clothes,58 to build a tomb59 or to engage in any other (factual) activity. Usually, however, the mandatary was asked to enter into a contractual relationship with a third party: be it that the mandator wanted him to lend or borrow money,[2126] to stand surety,[2127] to buy or sell a farm or to let or hire a slave. This is what we call indirect representation: A could use B to conclude a contract for him with C. However, it was not A who became obliged and entitled to C (that would have been direct representation, which Roman law did not know)[2128] but B, the "agent", himself. B was then bound under the mandate to hand over what he had acquired to A; A in turn had to indemnify B. Particularly the procurator acted in this manner as an indirect representative of his principal; as we have seen, in classical law his social status had become such that he was commissioned, as a rule, by way of a contract of mandate. In later centuries, mandatum (extraiudiciale or iudiciale) became the contractual cornerstone of direct representation; for once this institution had come to be recognized,[2129] and before Laband had isolated the granting of authority as something different (and abstract) from the internal contractual relationship between principal and agent,[2130] the contract of mandate usually provided the basis for the agent's ability to act in the principal's name.[2131]
(b) Illegal and immoral mandates; the mandatum tua tantum gratia
It hardly need be emphasized that illegal or immoral mandates were void;[2132] thus one could not validly commission a person to sack a temple or to wound a slave.[2133] [2134] Apart from that, as in any other contract, the object of the transaction had to be determined.69 A mandatum incertum (e.g.
to purchase for the principal any farm) was (probably) invalid,[2135] although a certain discretion could be left to the mandatary, at least as far as incidental points were concerned.[2136] However, there was one further, very interesting limit to the range of possible mandates: the mandatary could not bind himself to take care of his own affairs. Our sources consistently emphasize that a mandate cannot validly be concluded wholly in the interest of the mandatary. Such a mandatum tua tantum gratia, as it came to be called ("tua" as seen from the perspective of the mandator), was said to be "supervacuum". The reason is explained by Gaius[2137] as follows: "[Q]uod... tu tua gratia facturus sis, id de tua sententia, non ex meo mandatu, facere debes"; and Justinian[2138] [2139] [2140] added: "[Cjuius generis mandatum magis consilium est quam mandatum et ob id non est obligatorium. 1,73 If I ask another person to invest his money by purchasing land or to grow tulips in his front garden, I am not giving him a commission but a piece of advice. What he does with his money or with his garden is entirely his own affair. He may consult me because I have special banking or gardening expertise. But whatever I advise him to do, I will ultimately have to leave it to him to decide, whether or not he follows that advice. Anything else would be an unacceptable interference with his natural prerogative to attend to his business according to his own discretion. "Qui mandat, vult, et urget, ut fiat quod mandatum est. Qui dat consilium, consultoris arbitrio rem permittit. 1,74 With regard to the own affairs of the "mandatarius", only the latter alternative is conceivable,[2141] (c) Types of mandate according to the interest involved
The discussion of the somewhat exceptional situation of the mandatum tua tantum gratia gave rise to a slightly scholastic attempt positively to identify and categorize the circumstances under which a valid contract of mandatum could be concluded. Of course, it goes back to the law teacher, to Gaius.
He drew a distinction between mandatum mea gratia, tua gratia and aliena gratia.[2142] Later on, he refined this system by adding the possible combinations of mixed interest: "Mandatum inter nos contrahitur, sive mea tantum gratia tibi mandem sive aliena tantum sive mea et aliena sive mea et tua sive tua et aliena."[2143] Thus (leaving out mandatum tua tantum gratia) we arrive at a fivefold subdivision. It is obvious that the mandate mea gratia (i.e. in the interest of the mandator) is the normal type and does not present any difficulties. Much more problematic is mandatum aliena gratia: a mandate in the interest (purely) of a third party. Justinian provides an example: "Aliena autem causa intervenit mandatum, veluti si tibi mandet, ut Titii negotia gereres, vel ut Titio fundum emeres, vel ut pro Titio sponderes."[2144] A commissions B to take care of the affairs of C. Of course, this type of transaction cannot give rise to an action on the part of C; that would have been a (genuine) contract in favour of a third party. But even as far as the relationship between mandator and mandatary is concerned, it is difficult to see how B can incur an (enforceable) obligation: alteri stipulari nemo potest; and we know that this principle did not apply only to stipulations but also to all kinds of informal, consensual transactions.[2145] A mandatum aliena tantum gratia is characterized, per definitionem, by a lack of an actionable interest in the person of the mandator. How, under these circumstances, can he bring the actio mandati against the mandatary? And yet, our sources treat the mandatum aliena tantum gratia as valid.[2146] The solution to this apparent discrepancy seems to be implicit in the manner in which Ulpianus describes the situation in D. 17, 1, 8, 6: "Mandati actio tune competit, cum coepit interesse eius qui mandavit: ceterum si nihil interest, cessat mandati actio." At the time when B promises A to take care of C's affairs, A does not have an (actionable) interest in the matter: otherwise we would be dealing not with mandatum aliena tantum, but with mea et aliena gratia. But such an interest may well arise subsequently. For once B has taken charge of C's affairs, A may be liable to C under an actio negotiorum gestorum (directa): by commissioning B in the way he did, A himself took care of a matter for another (C), without having received a mandate from him or being otherwise entitled to do so. This unsolicited meddling with his affairs[2147] [2148] may be unwelcome to C, Even if it is welcome, however, C may have suffered a loss, since he may well have relied on the action of the mandatary and thus abstained from taking care of the matter himself.82 The actio mandati can therefore indeed only be brought by A against B, and the mandatum aliena tantum gratia can be regarded as valid only, if and when the former has an actionable interest: and that is entirely in harmony with what we have discussed above about the inherent limitation of alteri stipulari nemo potest.[2149] It is obvious that, if mandata mea and aliena gratia were valid, so were mandates based on a mixed interest:[2150] for they were at least partially in the interest of the mandator and/or a third party, even though they might also be in the interest of the mandatarius. It may be remembered that in the form of a "mandatum qualificatum" the mandatum tua et aliena gratia provided a useful suretyship transaction. In Justinian's Institutes we find the typical example: "Tua et aliena, veluti si [quis] tibi mandet, ut Titio sub usuris crederes."[2151] If Titius cannot repay, the mandatary may take recourse against the mandator. The latter is therefore effectively in the position of a surety.[2152]
4.