The use of manda turn, especially the mandatum qualificatum

More often than emptio venditio, however, the Romans employed the contract of mandatum in the present context. That could happen even where a fideiussio had already been concluded.

Thus, the creditor could arrange with the fideiussor to be mandated by him to sue the debtor.¹⁵⁴ In this way, the vexed problem of litis consumptio could be obviated; for whilst the creditor's action arising from the fideiussio was still consumed, an actio mandati contraria remained available to him against the fideiussor even after his unsuccessful attempt to obtain his satisfaction from the debtor. At the same time, this construction ensured that the creditor instituted legal proceedings against the principal debtor first, before turning to the fideiussor. More importantly, however, the contract of mandate could often be used in the place of fideiussio, i.e. as an alternative form of suretyship.¹⁵⁵ If Maevius requested Titius to lend money to Seius, he had in actual fact become surety for Seius: for if the latter failed to repay, Titius could sue Maevius with the actio mandati contraria for reimbursement on the ground of his having suffered loss in carrying out the request.^[737] The validity of this type of transaction (which came to be called "mandatum qualificatum" since the days of the commentators) was disputed at first, because, according to Servius Sulpicius, the mandator/surety himself (Maevius) had no actionable interest in the fulfilment of the mandate; however, Sabinus' opposite opinion seems to have prevailed,^[738] and in classical law this device was apparently fairly popular.^[739] It differed from fideiussio in that litis contestatio with the debtor did not consume the action against the mandator/surety.¹⁵⁴ Thus, the creditor could choose whom to sue first;¹⁶⁰ in case he did not obtain satisfaction from the one, he was not barred from proceeding against the other.

Furthermore, due to the informal, consensual nature of mandatum, this type of suretyship could be concluded inter absentes, which was, of course, not possible in the case of fideiussio. Also, the mandatum qualificatum, like all consensual contracts, gave rise to iudicia bonae fidei: the judge, according to the procedural formula, was requested to condemn the defendant into "quidquid... dare facere oportet ex fide bona" and therefore had a wide discretion to assess the obligations of the parties in accordance with the equities of the individual case. The action arising from fideiussio, on the other hand, was stricti iuris. Thus, for instance, the creditor lost his right of recourse against the surety/mandator where a mandatum qualificatum had been concluded, if his action against the debtor failed due to his own negligence: "Si creditor a debitore culpa sua causa ceciderit, proper est, ut actione mandati nihil a mandatore consequi debeat, cum ipsius vitio accident, ne mandatori possit actionibus cedere." The creditor was therefore taken to owe a duty of care towards the surety. There was no room for duties of this kind in the case of fideiussio. The stipulation by means of which it was concluded was a unilaterally binding contract which only placed the surety under an obligation to perform. As the action was stricti iuris, the judge did not have any discretion to derive reciprocal duties from or ascribe them to this contract.¹⁶¹

The Roman lawyers, of course, realized the true function of this type of mandatum. Thus a tendency is noticeable to treat it as a kind of suretyship and to apply, for instance, the beneficium divisionis where there was a plurality of mandators,¹⁶² or to allow the mandator to raise not only his own but also the debtor's exceptiones when he was sued by the creditor.¹⁶³ On the other hand, due to the bonae fidei nature of its actions, mandatum qualificatum sometimes served as a model for the

^m’ Schindler, Justitüans Haltung zur Klassik, pp.

38 sqq.

^H Cf. Scaev. D, 46, 1, 62: "Si fidejussor creditori denuntiaverit, ut debitorem ad solvendam pecuniam compelleret vel pignus distraheret, isque cessaverit, an possit eum fideiussor doli mali exceptione summovere? respondit non posse." There was, however, one instance of fideiussio in which the creditor did have such a duty: promissio indemnitatis. Mod. D. 46, 1, 41 pr.: "Respondit, si fideiussores in id accepti sunt, quod a curatore servari non possit, et post impietam legitimam aetatem ram ab ipso curatore quam ab heredibus eius solidum servari potuit et cessante eo, qui pupillus fuit, solvendo esse desierit: non temere utilem in fideiussores actionem competere." The reason for this decision is not given by Modestinus; it seems to lie in the nature of a fideiussio indemnitatis as a conditional promise (Paul./Pap. D. 45, 1, 116), to which the rule applied that the condition is deemed not to have been fulfilled, if the party to whose advantage it would have operated was responsible for its fulfilment. Cf. Rolf Knutel, "Zur Frage der sog. Diligenzpfhchten des Gläubigers gegenüber dem Burgen", in: Festschrift für Werner Flume, vol. I (1978), pp. 568 sqq. and infra, p. 729.

^E Cf. Pap. 27. 7. 7 in fine (interpolated?^-) and Just. C. 4. 18. 3: Karl-Heinz Schindler. "Zum Problem byzantinischer Bearbeitungen des ersten Codex", in: Studi in onore di Edoardo Volterra, vol. II (1971'). pp. 371 sqq.. but Liebs. Klagenkonkurrenz, pp. 187 sq.

^lffi Ulp. D. 46. 1. 32: Diocl. C. 4. 30. 12. Both texts have often been regarded as spurious: but see Kaser. RPr II. pp. 460 sq. (n. 281. development of the more inflexible fideiussio. Thus it was already recognized in classical law that the creditor could demand payment from the mandator/surety only if he was willing to cede to him his repayment claim against the debtor.^{^[740]} This idea, in the course of time, came to be applied to fideiussio as beneficium cedendarum actionum. Justinian rounded these developments off by equating mandatores and fideiussiores for all practical purposes.^{^[741]} It was not difficult, therefore, for later writers such as the Roman-Dutch jurists to weave these two strands into one and to fuse the equitable approach underlying mandatum with the fideiussio.^{^[742]} Even in countries such as Germany, where mandatum qualificatum did not entirely disappear but continues to occupy a little niche of its own,^{^[743]} it has come to be generally recognized that the obligations arising from fideiussio/suretyship are to be judged "ex bona fide" too.^{^[744]}

VII.

<< | >>

↑

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

The use of manda turn, especially the mandatum qualificatum

More on the topic The use of manda turn, especially the mandatum qualificatum: