Cicero p. Rosc. Am. 38, iii.: Si qui rem mandatam non modo malitiosius gessisset sui quaestus aut commodi causa, verum etiam negligentius, eum maiores summum admisisse dedecus existimabant ; itaque mandati constitutum est iudicium non minus turpe quam furti, credo propterea, quod quibus in rebus ipsi interesse non possumus, in eis operae nostrae vicaria fides amicorum supponitur.' Gai. iii. § 161: Cum autem is, cui recte mandaverim, egressus fuerit mandatum, ego quidem eatenus cum eo habeo mandati actionem, quatenus mea interest, implesse eum mandatum, si modo. implere potuerit: at ille mecum agere non potest. Itaque si mandaverim tibi, ut verbi gratia fundum mihi sestertiis c emeres, tu sestertiis CL emeris, non habebis mecum mandati actionem, etiamsi tanti velis mihi dare fundum, quanti emendum tibi mandassem-[namque iniquum est non esse mihi cum illo actionem, si nolit, illi vero, si velit, mecum esse.-Paul. 1. 3, § 2, D. h. t.]-idque maxime Sabino et Cassio placuit-[diversae scholae auctores recte te usque ad c acturum existimant, quae sententia sane benignior est.§ 8, I. h. t.]-; quodsi minoris emeris, habebis mecum scilicet actionem, quia qui mandat, ut c emeretur, is utique mandare intelligitur, uti minoris si posset emeretur." mandate, if able to fulfil it, ought not to abandon his promised service; otherwise, he will be mulcted in the amount of the personal interest of the mandator. 1 Whosoever had conducted a matter entrusted to him, not only fraudulently for his own gain or advantage, but also carelessly, was by our ancestors considered to have incurred supreme dishonour; accordingly, the action for breach of trust has been established, not less disgraceful than that in respect of theft, I suppose because in matters in which we ourselves cannot take part, the fidelity of friends is substituted for our services. 2 When a person whom I have duly commissioned has trans BOOK III. Pt. I. Ch. II. BOOK III. Pt. I. Ch. II. Id.: Procurator ex bona fide rationem reddere debet.-1. 46, § 4, D. de proc.1 Paul. Ex mandato apud eum, qui mandatum suscepit, nihil remanere oportet.-1. 20 pr., D. h. t.2 Ulp.: Proinde si tibi mandavi, ut hominem emeres, tuque emisti, teneberis mihi ut restituas. -1. 8, § 10 eod." (2) The mandant is by the actio mandati contraria' responsible to the mandatory to indemnify him. : Id. Si mihi mandaveris, ut rem tibi aliquam emam, egoque emero meo pretio, habebo mandati actionem de pretio recuperando.-1. 12, § 9 eod.* gressed the terms of the mandate, I have an action of mandate against him for the amount of my interest in his performance of the mandate, provided it was possible for him to have performed it; but he cannot sue me. If therefore I have charged you with the purchase for me of land for, say, a hundred thousand sesterces, and you have purchased it for a hundred and fifty thousand, you will not have an action of mandate against me, even though you should be willing to make over the estate to me for the price which I commissioned you to give [for it is inequit able that I should not have an action against so and so if he be unwilling, but that he should have one against me if he be willing]. And this was decided by the opinion of Sab. and Cass. [the authorities of the opposite school are of opinion that you can effectually sue for the hundred aurei, and this is certainly the better opinion]. But if you have purchased it for less, you will doubtless have an action against me, because he that commissions a person to purchase for a hundred thousand sesterces is certainly considered to give a commission to purchase it for less if possible. 1 A procurator must render an account according to good faith. 2 Nothing ought to be kept back by the mandatory of what is in his hands by virtue of the mandate. 3 Accordingly, if I have commissioned you to purchase a slave, and you have made the purchase, you will be responsible to me for his delivery. 4 If you have given a commission to me to buy something for you, and I purchase it with my own money, I shall have an action of mandate for the recovery of the price. Gai. Impendia mandati exsequendi gratia facta, si bona fide facta sunt, restitui omnimodo debent; nec ad rem pertinet, quod is qui mandasset, potuisset, si ipse negotium gereret, minus impendere.-1. 27, § 4 eod.' The mandate is put an end to (1) by the death of the mandant or mandatory. Gai. iii. § 160: Si adhuc integro mandato mors alterutrius interveniat, i.e. vel eius qui mandaverit, vel eius qui mandatum susceperit, solvitur mandatum; sed utilitatis causa receptum est, ut si mortuo eo, qui mihi mandaverit, ignorans eum decessisse exsecutus fuero mandatum, posse me agere mandati actione.2 (2) By revocation 're integra' on the part of the mandant. Paul. Si mandassem tibi, ut fundum emeres, (3) By renunciation at the proper time on the part of the mandatory. Id. Sicut autem liberum est mandatum non suscipere, ita susceptum consummari oportet, nisi renuntiatum sit. Renuntiari autem ita potest, ut 1 Expenses incurred in the execution of the mandate, if incurred in good faith, must in all cases be refunded; and it is immaterial that the mandator, if he had transacted the business in person, could have spent less. * If the death of either party occur before the execution of the mandate, that is, either the death of him who gave the mandate, or of him who undertook it, the maudate is cancelled. But for convenience' sake the rule has been adopted, that if after the death of the mandator I, being ignorant that he is dead, execute the mandate, I can sue by the action of mandate. If I had commissioned you to purchase land, and afterwards wrote that you were not to make the purchase, but you purchased before you knew of my countermand, I shall be liable to you in an action of mandate. S S BOOK III. Pt. I. Ch. II. BOOK III. I't. 1. Ch. II. a Those 'cha racterised by individuality.' Cf. § 115. integrum ius mandatori reservetur, vel per se vel per alium eandem rem commode explicandi.— 1. 22, § 11 eod.' $126. EXTENSION OF THE SYSTEM OF CIVIL CONTRACTS BY THE SO-CALLED INNOMINATE CONTRACTS. The circle of obligatory agreements operative by Civil Law was from the beginning of imperial times extended, by actionability being gradually accorded to all informal agreements (nova negotia) relating to performance in consideration of corresponding counterperformance, which did not fall under the conception of one of the already established typical contracts (perhaps under the aspect of the lex [dationi] rei dicta), where performance had already been rendered on one side. These were the INNOMINATE, or nameless, real contracts. : Gai. In traditionibus rerum quodcumque pactum sit id valere manifestissimum est.-1. 48, D. de pact. 2, 14.2 Ulp. Labeo definit . . . 'contractum' ultro citroque obligationem, quod Graeci ovváλdayμa vocant, veluti emptionem venditionem, locationem conductionem, societatem.-D. 50, 16, 19.* Id. Sed etsi in alium contractum res non transeat, subsit tamen causa, eleganter Aristo Celso respondit esse obligationem, ut puta dedi Now just as one is at liberty not to undertake a mandate, so when undertaken it ought to be carried out, unless it have been renounced. But it can be renounced (only) in such way that power is reserved without prejudice to the mandator of either himself or through another conveniently accomplishing the transaction. It is quite certain that validity attaches to whatever agreement has been made upon the occasion of the delivery of things. 3 Labeo defines a contract as a reciprocal obligation, which the Greeks call ovváλλaypa; for example, a purchase and sale, a letting and hiring, a partnership. nasci BOOK tibi rem, ut mihi aliam dares, dedi ut aliquid Book III. Paul. Emptio ac venditio nuda consentientium I, The action by which the fulfilment of the contract, i.e., counter-performance, was exacted was the '(civilis) actio praescriptis verbis,' conceived 'in factum,'" which a § 203. operated altogether as an auxiliary action, when the legal nature of the contract was doubtful, because of the absence of the special characteristic marks belongiug to the juristic essence of one of the established particular contracts. : Pap. Domino mercium in magistrum navis, si sit incertum, utrum navem conduxerit an merces vehendas locaverit, civilem actionem in factum esse dandam Labeo scribit.-Item si quis pretii explorandi gratia rem tradat, neque depositum neque commodatum erit, sed non exhibita fide in factum civilis subiicitur actio,—(Cels. : nam cum 1 But although while the transaction does not pass into another contract, causa (material consideration) is present. Aristo judiciously replies to Celsus, that there is an obligation; for example, I have given a thing to you that you might give another to me, I have made a gift (to you) that you might do something; that this is a σvváλλayμa (contract), and a civil obligation arises therefrom. A purchase and sale is contracted by the mere will of the consenting parties; but an exchange originates an obligation from the time of the delivery of the thing; otherwise, if the thing has not yet been delivered, we shall say that the obligation is created by bare consent, which, however, only occurs in respects of those contracts that have a definite name, as with purchase and sale, hiring, mandate. § 123; D. 19, 5, 6. |