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p728 Mandatum

Article by George Long, M.A., Fellow of Trinity College
on p728 of

William Smith, D.C.L., LL.D.:

MANDA′TUM. It is a contract of mandatum when one person commissions another to do something without reward, and that other person undertakes to do it: and generally it may be stated that whenever a man commissions another to do something without pay, which, if the thing were to be done for pay (merces), would make the transaction a contract of locatio and conductio, the contract of mandatum exists; as if a man gives clothes to a fullo to be furbished up and cleaned, or to a tailor (sarcinator) to mend. The person who gave the commission was the mandans or mandator: he who received it, was the mandatarius. The mandatum might be either on the sole account of the mandator, or on another person's account, or on the account of the mandator and another person, or on account of the mandator and mandatarius or on the account of the mandatarius and another person. But there could be no mandatum on the account (gratia) of the mandatarius only; as if a man were to advise another to put his money out to interest, and it were lost, the loser would have no mandati actio against his adviser. If the advice were to lend money to Titius, and the loan had the like result, it was a question whether this was a case of mandatum; but the opinion of Sabinus prevailed, that it was, and the mandant thus became security for Titius. It was not mandatum if the thing was contra bonos mores, or in other words, if the object of the mandatum was an illegal act. A mandatum might be general or special; and the mandatarius was bound to keep within the limits of the mandatum. The mandator had an utilis actio against such persons as the mandatarius contracted with; and such persons had the like action against the mandator; and a directa actio against the mandatarius. The mandator and mandatarius had also respectively a directa actio against one another in respect of the mandatum: the actio of the mandatarius might be for indemnity generally in respect of what he had done bona fide. If the mandatarius exceeded his commission, he had no action against the mandator; but the mandator in such case had an action for the amount of the damage sustained by the non-execution of the mandatum, provided it could have been executed. The mandatum might be recalled by the mandans, or renounced by the mandatarius, "dum adhuc integra res sit," that is, no loss must accrue to either party in consequence of the contract being rescinded. The contract was dissolved by the death of either party; but if the mandatarius executed the mandatum after the death of the mandator, in ignorance of his death, he had his action against the heres, which was allowed "utilitatis causa." According to Cicero a mandati judicium was "non minus turpe quam furti" (Pro Rosc. Amer. c38); which however would obviously depend on circumstances. [Infamia.]

Mandatum is sometimes used in the sense of a command from a superior to an inferior. Under the empire the Mandata Principum were the commands and instructions given to governors of provinces and others (see the letter of Plinius to Trajanus, and the emperor's answer, Plin. Ep. X.111, 112). Frontinus (De Aquaeduct.) classes the Mandata Principum with Lex and Senatusconsulta. (See Puchta, Inst. I.110).

(Gaius, III.155‑162, Gaius, IV.83, 84; Inst. 3 26; Dig. 17 tit. 1; Cod. 4 tit. 35; Vangerow, Pandekten, &c. III.469.)

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Page updated: 21 Aug 04