Mandate (Mandatum)
(1) Nature and Creation of Mandate
The essence of mandate was that it involved a request by one person (the mandaÂtor) to another (the mandatary) to carry out some action on behalf of the manÂdator, and the mandatary’s agreement to this.
An example might be one person agreeing to go to market to buy goods on behalf of another.In principle, a contract of mandate was gratuitous, or else it would be a conÂtract of hire.[2279] In origin, it was an arrangement by which services were proÂvided out of friendship or as a favour. This, though, became a problem in the Empire, by which time professionals such as advocates expected to be paid for their efforts, yet who, as providers of operae liberales, could not enter into a contract of hire for them.[2280] The solution was to allow for promises to pay the mandatary a fee, known as an honorarium, to be enforceable, but to maintain the distinction with hire by having that promise enforceable only through the cognitio extraordiÂnaria procedure.[2281]
The simplest case of mandate is where the action to be carried out is solely for the benefit of the mandator, for example where the mandatary is requested to buy property or act as cautioner[2282] for the mandator.[2283] However, there were other possibilities. For example, the mandate could be for the benefit of both mandator and mandatary. An example would be where the mandator requested the mandatary to lend money at interest to someone who is to apply the money in the interests of the mandator.[2284] Indeed, the mandate could be solely for the benefit of a third party or the benefit of a third party and the mandatary between them.[2285] The only possibility that is excluded byJustinian is a mandate that is solely for the benefit of the mandatary.[2286] For example, suppose that I advised you how to invest your money.
This would be advice rather than a mandate, so I would not be liable to you even if the investment turned out badly.[2287] This raises the more general question of whether the mandator had to have an interest in the performance of the mandate. The texts are inconclusive.[2288] It is likely that the position was that the mandator had to have some interest in the matter, but that this could be indirect, as for example where the matter was primarily in the interÂests of the mandatary or a third party, but the mandator was indirectly benefiting from the performance of the mandate.[2289]Except for the requirement that the mandate be gratuitous (which we have seen, in any case, was substantially departed from), mandate bears a great deal of similarity to a modern contract of agency. Both, after all, involve one person carrying out some form of transaction on behalf of another. This should not be overstressed, however. Suppose that I have agreed to negotiate the purchase of a horse on your behalf, and I then do so. A contract of sale of the horse is conÂstituted. In modern law, I am seen as acting as your agent here. As long as I act within the authority you have given me, and the seller knows that he is dealing with an agent, I am not a party to the contract of sale and have no liability under it. In a modern agency arrangement, I am merely the means by which you have entered into the contract. The contract is enforceable by and against you, not me.
The Roman contract of mandate was different. In the scenario just described, the contract would be between the seller of the horse and me, the mandatary. It would be enforceable by and against me just as if I was buying the horse for my own benefit. My relationship with you would be none of the seller's concern, and in the first instance ownership of the horse would pass from the seller to me, not to you, because property bought by a mandatary was not owned by the mandator until delivered to the mandator.[2290] This simplifies matters somewhat: means were developed for the enforcement, in certain circumstances, of such contracts against the person who instructed their making.[2291] In principle, though, it remained always the position that the mandator was not a party to contracts made by the mandatary, and could not normally sue under them unless the rights under such a contract were assigned to the mandator.[2292]
(2) Duties of Mandator
The mandator was obliged to accept the performance of the mandate by the mandatary and to make good any expenses the mandatary had incurred in execution of the mandate.
It was disputed between the two classical schools of jurists, the Sabinians and the Proculians, what would happen if the mandatary exceeded the mandate, for example by spending more than the maximum stated by the mandator on buying goods.[2293] The Sabinian view was that the mandaÂtary would not be entitled to recover anything from the mandator.[2294] The view that prevailed, though, was that of the Proculians that the mandatary would be entitled to recover from the mandator everything spent up to the agreed limit.[2295] The mandator’s duties were enforced using the actio mandati contraria.(3) Duties of Mandatary
The mandatary’s duty, of course, was to carry out the mandate. What if the mandatary carried out the mandate in such a way that loss was caused to the mandator? Certainly, the mandatary would not be liable if the loss arose from circumstances outside his or her control. It is not entirely clear, though, whether the mandatary would be liable for mere negligence in carrying out the mandate, or whether intentional wrongdoing was needed.[2296] A remedy for the mandatary’s failure was obtained using the actio mandati directa.
(4) Termination of Mandate
A mandate could be freely renounced by either party, bringing the contract to an end, as long as this was done before either had changed position in reliance on it.[2297] Thus, if the mandatary was to decide to renounce the mandate, this had to be done as soon as possible: if the mandatary renounced without good reason, he or she would be liable to the mandator if the latter was left in a worse position.[2298] A mandate was also brought to an end by the mandator’s death.[2299] However, Justinian nonetheless allowed the mandatary an action (against the mandator’s heir) if the mandate was carried out in ignorance of that death.[2300]
E.