2 09obligations mandate - urbanik.bio.wpia.uw.edu.plurbanik.bio.wpia.uw.edu.pl/files/2012/07/2_09obligations-mandate1.pdf · Which contract then? ... commodatum; Liability of the

MandateJakub Urbanik/José Luis Alonso: The Principles of Roman Law

Gratuitous services in the Roman world


Titius gets the famous advocate Hortensius to defend him in trial. Is this a locatio conductio of some sort?



Socially unacceptable: merces = mercennarius. Which contract then?




Mandatum nisi gratuitum nullum est. Honorarii, remunerationes.





Why if gratuitous we consider it a contract, who can sue for what?






Mandator: performance, reimbursement of expenses. //






Mandator: performance, reimbursement of expenses. //

Mandatarius: expenses, damages.

Liability of the mandatary


Which standard? dolus? dolus and culpa?


Which standard? dolus? dolus and culpa?Criteria:



a) the balance of interests; compare with deposit and commodatum;



a) the balance of interests; compare with deposit and commodatum;b) infamia



Mod. diff. Coll. 10.2.3: In mandati vero iudicium dolus, non etiam culpa deducitur. … (in the trial on mandate, the fraud but not negligence is examined


Mod. diff. Coll. 10.2.3: In mandati vero iudicium dolus, non etiam culpa deducitur. … (in the trial on mandate, the fraud but not negligence is examinedUlp. 29 Sab. D. 50.17.23: Certain contracts only involve fraud, others involve both fraud and negligence. Those which involve fraud are deposits and precarium; those which involve both fraud and negligence are mandate, loan for use, sale, pledge, hiring, and also the bestowal of dowry, guardianship, and the transaction of business. ...


Mod. diff. Coll. 10.2.3: In mandati vero iudicium dolus, non etiam culpa deducitur. … (in the trial on mandate, the fraud but not negligence is examinedUlp. 29 Sab. D. 50.17.23: Certain contracts only involve fraud, others involve both fraud and negligence. Those which involve fraud are deposits and precarium; those which involve both fraud and negligence are mandate, loan for use, sale, pledge, hiring, and also the bestowal of dowry, guardianship, and the transaction of business. ... Contradiction?



Contradiction?


Contradiction? The double side of the liability standard of the mandatarius:



in the action against him dolus



in the action against him dolusin his own action against the mandator: culpa

Liability of the mandator


I commission you to undertake my defence in trial, you do so, and fail to win my absolution. Can you sue me for the expenses?



Yes, unless you have lost because of your own negligence.




If because of being in Rome for my sake, a slave of yours dies because of an epidemic spreading through the city, can you sue me for the damages?




If because of being in Rome for my sake, a slave of yours dies because of an epidemic spreading through the city, can you sue me for the damages?

Afr. 8 quaest. D. 47.2.62.5: But, with reference to what concerns the action on mandate, he says that he doubts whether it should also be held that all damages should be made good. And, indeed, this principle should be observed even more than in the preceding cases; so that if he who gave the order for the purchase of a certain slave did not know that he was a thief, he will, nevertheless, be compelled to make good all damages sustained; for it will be perfectly just for the agent to allege that he would not have suffered the damage if he had not received the order.

Restrictive approach

Paul. D. 17,1,26, 6-7: A mandator cannot make a charge of all the expenses which he may have incurred; as, for instance, where, because he has been robbed by thieves, or has lost property by a shipwreck, or he, or the members of his family, have been attacked by disease, he has been compelled to incur expense; for these things should be rather attributed to accident than to mandate. ...

Paul. 3 Nerat. D. 46,1,67: After having made use of an exception, which should have benefited you, an unjust decision was rendered against you. You can recover nothing by virtue of the mandate, for the reason that it is more equitable that the wrong done to you should not be redressed rather than be transferred to another; provided that, through your own negligence, you caused the unjust decision to be rendered against you.

Exceeding the terms of mandate


A commissions B to purchase an estate for 100, and Bbuys it for 120. Preliminary question: can the seller sue Afor the price?



Indirect agency: mandate does not concern third partiesnor changes their position.




Is A obliged to pay the 120 to B?




Is A obliged to pay the 120 to B?

If B is ready to transfer the farm to A for 100, can heforce A to accept it?

Paul. 32 ed. D. 17.1.3.2

If I fixed the price, and you bought the article for more, certain authorities deny that you will be entitled to an action on mandate, even though you are ready to pay the amount of the excess; for it is unjust that I should lack an action against you if you were unwilling to do so, but that you should have one against me if you are willing.

I. 3.16.8

He who executes a mandate ought not to exceed its terms; as, for example, where anyone commissions you to purchase land, or to become surety for Titius for a hundred aurei, you should neither purchase for a larger sum, nor become security for a greater amount;

otherwise, you will not be entitled to an action of mandate against him; so that, as held by Sabinus and Cassius, you would bring suit to no purpose, even if you wished to do so for only a hundred aurei.

Authors of the other school hold that you have a right to bring suit up to a hundred aurei; and this opinion is certainly the more liberal one.

Mandatum tua tantum gratia


You are willing to buy some land, and I advise you to buy a certain plot in northern Africa from a friend of mine, immensely fertile land I assure you. You buy it, and it turns out to be extremely arid. Was this mandate? Can you sue me for the damages?


You are willing to buy some land, and I advise you to buy a certain plot in northern Africa from a friend of mine, immensely fertile land I assure you. You buy it, and it turns out to be extremely arid. Was this mandate? Can you sue me for the damages?

Gai. 3.156: If, however, I direct you to perform some act for your own benefit, the mandate will be to no purpose, for what you are about to do for your own advantage should depend on your own judgement, and not be done on account of my mandate. Therefore, if you have some idle money at home, and I advise you to lend it at interest, and you lend it to a party from whom you cannot collect it, you will not be entitled to an action of mandate against me. Again, if I advise you to purchase some article, even though it will not be to your advantage to do so, I will still not be liable to you in an action of mandate. ...

Mandatum qualificatum


A friend of mine needs credit, and I send it to you, with a letter of recommendation, expressly stating that I undertake the risk of him being insolvent. Is that a mandate? Can you sue me if my friend is not able to pay?


A friend of mine needs credit, and I send it to you, with a letter of recommendation, expressly stating that I undertake the risk of him being insolvent. Is that a mandate? Can you sue me if my friend is not able to pay?

Gai. 3.156: ... These rules have been so well established that the question arose whether a party is liable in an action of mandate who advised you to lend money to Titius. Servius denied that liability is incurred, and thought that an obligation could not arise in this instance, any more than in one where a person is generally advised to lend his money at interest. We, however, adopt the contrary opinion of Sabinus, for the reason, that you would not have lent money to Titius if you had not been advised to do so.

Mandatum qualificatum: function

Titus Aulus

Sextus


Titus Aulus

Sextus

man

date


Titus Aulus

Sextus

Loan of 1000

man

date


Titus Aulus

Sextus

Loan of 1000

man

date

condictio


Titus Aulus

Sextus

Loan of 1000

man

date

condictioactio mandati


Titus Aulus

SextusAnother type of a collateral

Loan of 1000

man

date


Two collaterals

Sextus sent Titus a letter ordering him to lend to Aulus 1000. Titus did so, and afterwards formally asked Aulus whether he would return the money (sponsio). The transaction was additionally secured by Septimus by a sponsio, who was present.

What should Titus do if his debtor does not pay back?


Titus Aulus

Sextus Septimus

Loan of 1000 replaced by a sponsio

man

date


sponsio: item mihi spondes?

condictio


Titus Aulus

Sextus Septimus

Loan of 1000 replaced by a sponsio

man

date


sponsio: item mihi spondes?

condictio

Practical side:

SECURITY Inter absentes, free from trial consumption

Mandatum morte dissolvitur

I have been summoned by some creditors to appear in court in Rome on January 1st. Knowing that you are travelling to Rome, I commission you to undertake my defence. You die in the trip, and as a consequence, I am declared indefensus by the magistrate, and all my property in Rome is seized. Can I sue your heirs for the damages?

Gai. 3,160: Again, if before a mandate was begun to be executed, the death of either of the parties should take place, that is the death of him who gave the mandate, or of him who received it, the mandate is annulled.

Mandate is dissolved by death, but not the action on it


If before your death you had already won my absolution, can your heirs sue me for the expenses?



Paul. 4 quaest. D. 17.1.58pr.: mandatum morte mandatoris, non etiam mandati actio solvitur




What, if it is me who dies, and you carry on with the commission. Can you sue my heirs for the expenses?




What, if it is me who dies, and you carry on with the commission. Can you sue my heirs for the expenses?

Gai. 3.160: However, for the sake of convenience, the rule has been adopted that if the party who gave me the mandate should be dead, and I, being ignorant of his death, should execute the mandate, an action of mandate can be brought by me; otherwise a just and natural want of information would occasion me loss. ...

Mandatum tacitum

Mandatum tacitum

A being absent from Rome, B, knowing that a trial against him will take place, undertakes his defence without being asked. Quid iuris?

Mandatum tacitum


Negotiorum gestio, if anything. More restrictions to ask for the damages and expenses, higher liability

Mandatum tacitum



Never mandate?

Mandatum tacitum



Never mandate?

He writes informing of his intentions, and A does not answer. Knowing and not preventing

Mandatum tacitum



Never mandate?

He writes informing of his intentions, and A does not answer. Knowing and not preventing

Useful solution to the problem of redress in collateral.

A. NEGOTIORUM GESTIO


• The actions (bases on good faith):



• Dominus negotii:




• actio negotiorum gestorum directa





• Negotiorum gestor






• actio negotiorum gestorum contraria






• actio negotiorum gestorum contraria

• modern importance/non-existence in common law.

THE ORIGINS: THE CRUEL PORTUGUESE

D. 3.5.20 (21). Paulus, On the Edict, Book IX. Servius responded, as it is reported at Alfenus’ Thirty-ninth Book of the Digest, that when three men were captured by the Lusitanians, and one of them was released on condition of his bringing a ransom for all three, if he did not return, the two others would be required to pay a ransom for himself also; and he having refused to return, and for this reason, the others having paid his ransom, as well as their own, Servius answered that it was equitable for the praetor to grant them a trial against him.

LIABILITY OF GESTOR

D. 3.5.10 (11) (Pomponius,.Commentary on Quintus Mucius, book 21) If you transact the business of an absent party without his knowledge, you should be liable both for negligence and fraud (dolus & culpa); but Proculus is of the opinion that you ought sometimes to be responsible for accidents, as for instance, where you attend to some new business in the name of the absent party which he was not in the habit of transacting, for example, by purchasing new slaves, or by engaging in some other enterprise, for if any loss to him resulted therefrom, you would be responsible; but any profit would belong to the absent party, and where profit accrued in some instances, and loss was sustained in others, the absent principal should set off the profit against the loss.

A CASE

A CASE

Marcus is a wine merchant. Having decided to leave for a long journey he handed over the keys to his store to his friend Aulus. After a few weeks Aulus noticed that wine had started getting sour. He immediately sold all the amphorae to the local military garrison. Only because of that he managed to obtain 100 (of the original value of 200). Willing to recover some of the loss he invested the money in buying 10 oxen. Five of them, however, died of mouth and feet disease. How much should he pay back to his friend?

A CASE

Marcus is a wine merchant. Having decided to leave for a long journey he handed over the keys to his store to his friend Aulus. After a few weeks Aulus noticed that wine had started getting sour. He immediately sold all the amphorae to the local military garrison. Only because of that he managed to obtain 100 (of the original value of 200). Willing to recover some of the loss he invested the money in buying 10 oxen. Five of them, however, died of mouth and feet disease. How much should he pay back to his friend?

What if due to the M&FD epidemic the price of a single ox rose to 50?

UTILITY…

D. 3.5.9(10).1 (Ulpianus, Comm. on the Edict, book 10) Where a man brings an action based on the ground of business transacted he employs this action not only when what he did had some effect, but it is sufficient if he conducted the business usefully even if it produced no effect; and therefore if he repaired a building, or cured a slave who was ill, he still has a right of action on this ground, even if the house was burned, or the slave died; and this opinion Labeo also confirms; but Celsus says Proculus states in a note on Labeo that the action should not always be granted; for what if he repaired a house which the owner had abandoned as not being worth repairing, or which he did not think he needed? According to the opinion of Labeo, he is imposing a burden upon the owner in this instance,

UTILITY…

since everyone is allowed to abandon property to avoid an action for threatened injury. Celsus gracefully ridicules this opinion; for he states that the party who transacts business in a useful manner has a right of action on this ground; but he does not attend to the matter as he should, who adds something which was not necessary, or imposes a burden upon the head of the household. What Julianus wrote is applicable where he who repairs a house or cures a sick slave is entitled to an action based on business transacted, if what he does is an advantage, even if the general result was not useful. I ask what must be done if he thought he was acting usefully, but it did not profit the head of the household? I say that he will not be entitled to an action based on business transacted, for the beginning ought to be useful, even though we do not consider the result.

UTILITY…

Where a man brings an action based on the ground of business transacted he employs this action not only when what he did had some effect, but it is sufficient, if he conducted the business usefully even if it produced no effect; and therefore if he repaired a building, or cured a slave who was ill, he still has a right of action on this ground, even if the house was burned, or the slave died; and this opinion Labeo also confirms;

UTILITY…

Where a man brings an action based on the ground of business transacted he employs this action not only when what he did had some effect, but it is sufficient, if he conducted the business usefully even if it produced no effect; and therefore if he repaired a building, or cured a slave who was ill, he still has a right of action on this ground, even if the house was burned, or the slave died; and this opinion Labeo also confirms; but Celsus says Proculus states in a note on Labeo that the action should not always be granted; for what if he repaired a house which the owner had abandoned as not being worth repairing, or which he did not think he needed? According to the opinion of Labeo, he is imposing a burden upon the owner in this instance, since everyone is allowed to abandon property to avoid an action for threatened injury.

UTILITY…

Where a man brings an action based on the ground of business transacted he employs this action not only when what he did had some effect, but it is sufficient, if he conducted the business usefully even if it produced no effect; and therefore if he repaired a building, or cured a slave who was ill, he still has a right of action on this ground, even if the house was burned, or the slave died; and this opinion Labeo also confirms; but Celsus says Proculus states in a note on Labeo that the action should not always be granted; for what if he repaired a house which the owner had abandoned as not being worth repairing, or which he did not think he needed? According to the opinion of Labeo, he is imposing a burden upon the owner in this instance, since everyone is allowed to abandon property to avoid an action for threatened injury. Celsus gracefully ridicules this opinion; for he states that the party who transacts business in an useful manner has a right of action on this ground; but he does not attend to the matter as he should, who adds something which was not necessary, or imposes a burden upon the head of the household.

UTILITY…

Where a man brings an action based on the ground of business transacted he employs this action not only when what he did had some effect, but it is sufficient, if he conducted the business usefully even if it produced no effect; and therefore if he repaired a building, or cured a slave who was ill, he still has a right of action on this ground, even if the house was burned, or the slave died; and this opinion Labeo also confirms; but Celsus says Proculus states in a note on Labeo that the action should not always be granted; for what if he repaired a house which the owner had abandoned as not being worth repairing, or which he did not think he needed? According to the opinion of Labeo, he is imposing a burden upon the owner in this instance, since everyone is allowed to abandon property to avoid an action for threatened injury. Celsus gracefully ridicules this opinion; for he states that the party who transacts business in an useful manner has a right of action on this ground; but he does not attend to the matter as he should, who adds something which was not necessary, or imposes a burden upon the head of the household. What Julianus wrote is applicable where he who repairs a house or cures a sick slave is entitled to an action based on business transacted, if what he does is an advantage, even if the general result was not useful.

UTILITY…

UTILITY…


UTILITY…


UTILITY…


UTILITY…


UTILITY…

UTILITY…


UTILITY…


UTILITY…


UTILITY…


UTILITY…

UTILITY…


UTILITY…


UTILITY…


UTILITY…


UTILITY…

UTILITY…


UTILITY…


UTILITY…


UTILITY…


UTILITY…

1. Labeo: Utility as the Ground of the Liability, useful start, not the effect

1. Labeo: Utility as the Ground of the Liability, useful start, not the effect2. Proculus: subjective utility (useful for the master)

1. Labeo: Utility as the Ground of the Liability, useful start, not the effect2. Proculus: subjective utility (useful for the master)3. Celsus: objective utility (useful for a good head of the household)

1. Labeo: Utility as the Ground of the Liability, useful start, not the effect2. Proculus: subjective utility (useful for the master)3. Celsus: objective utility (useful for a good head of the household)4. Julian: useful commencing, no effect needed (Labeo might have had in mind that the action in a certain moment had a positive effect, subsequently destroyed).

1. Labeo: Utility as the Ground of the Liability, useful start, not the effect2. Proculus: subjective utility (useful for the master)3. Celsus: objective utility (useful for a good head of the household)4. Julian: useful commencing, no effect needed (Labeo might have had in mind that the action in a certain moment had a positive effect, subsequently destroyed).5. Ulpian’s case:

1. Labeo: Utility as the Ground of the Liability, useful start, not the effect2. Proculus: subjective utility (useful for the master)3. Celsus: objective utility (useful for a good head of the household)4. Julian: useful commencing, no effect needed (Labeo might have had in mind that the action in a certain moment had a positive effect, subsequently destroyed).5. Ulpian’s case:I ask what must be done if he thought he was acting usefully, but it did not profit the head of the household? I say that he will not be entitled to an action based on business transacted, for the beginning ought to be useful, even though we do not consider the result.

A CASE

Livia leaving for a long-desired trip to Egypt asked her best friend Marcia to take care of her collection of cacti. Marcia, well-known in Pompei for her passion for water-lilies took up to the task very seriously. Much to her dismay, the plants rotted quickly... moreover a couple of weeks before the scheduled return of Livia her home got on fire. Marcia decided to renovate the place, she paid for the roof, repainting of the walls in the very trendy Pompeian rouge. To make a nice surprise she also contracted a local painter, Salvius, to paint a Egyptian-styled fresco. Upon her come-back Livia finds rotten plants and a kitsch landscape painted on horrifying red walls. What may the women do to each other?

Documents

2 09obligations mandate - urbanik.bio.wpia.uw.edu.plurbanik.bio.wpia.uw.edu.pl/files/2012/07/2_09obligations-mandate1.pdf · Which contract then? ... commodatum; Liability of the