Учебный год 22-23 / The Law of Obligations

is the lex Rhodia proper, but its range of application may well be somewhat limited in practice. Austria, after all, is not a naval power of the first order. However, all the great seafaring nations of modern times have adopted the same or very similar rules.167 The lex Rhodia de iactu, as applied in Roman law, was taken over by the Italian city-states and became part of the medieval codifications of maritime law all over Europe, up to the Baltic Sea. It influenced artt. VIII and IX (dealing with the duty of contribution in cases of jettison at sea) of the Roles d'Oleron168 (which in turn were received, inter alia, in Flanders — under the name of Vonnisse van Damme—and Holland (Amsterdam-

sche Ordonantie)) and the town laws of Hamburg and Lubeck. These in turn provided the basis for the Sea Law of the Hanseatic League.!fi9

The Prussian General Land law dealt with what was by then called "grosse Haverei",17(l and so did the General German Commercial Code of 1861. From there these rules were taken over into the Commercial Code of 1897 which is still in force today. In England, the principle exemplified by the Rhodian law was also adopted: hardly surprising if one considers the complete monopoly of the civilians171 over actions in

167 Cf. H. Kellenbcnz, "Haverei", in: HRC, vol. 2, col. 2 sqq.; Going, pp. 554 sq.; Gotz Landwehr, Die Haverei in den mittetatterlichen deutschen Seerechtsquellen (1985), passim. For an "intelligent and exhaustive" treatment of "one whose country was in its golden century the maritime leader of the world" (Percival Gane, The Selective Voet, vol. Ill (1956), p. 76), cf. Johannes Voet, Commentarius ad Pandectas, Lib. XIV, Tit. II (dealing e.g. with the community of property in food and drink which ought to exist among stranded castaways in order to protect them against the horrors of cannibalism).

'й8 A collection of customary rules dealing, originally, with the transportion by sea of wine from the ports of Bordeaux and La Rochelle. The Roles have played a central part in the formation of the sea law in north-western Europe. Cf. H. Kellenbenz, HRG, vol. 3, col. 1240 sqq.

169 Gotz Landwehr, "Die Hanseatischen Seerechte des 16. und 17. Jahrhunderts", in: 1667

drs siolag i ett 300-drigt perspektiv (1984), pp. 75 sqq.; on "grosse Haverei" cf. pp. 103 sqq. ° §§ 176fi H 8; based on the Prussian Sea Law of 1727; cf. Gotz Landwehr, "Das

Preussische Seerecht vom jahre 1727 im Rahmen der curopaischen Rechtsentwicklung", (1986) 8 ZSR 132 sqq. For the first general definition of "grosse Haverei7' cf. Quintijn Weijtsen,

Tractaet van 't Recht der Nederlantsche Avaryen (1651), § 17: "Waer by men sonde mogen infereren, dat de schaden, die men gewillighlijk ende voluntairement doet aen 't Schip ofte Goeden, om meerder apparenter hinder te beschutten, souden moeten gerekent werden voor Avarye grosse." Vinnius, in his notes on Peckius. In Till, Dig. et Cod. ad rem nauticam pertinentes Commentary i (1647), pp. 193, 206, writes: "Duac res concurrere debent. ut actio hujus contributionis nomine competat: 1, jactura rerum ex una parte, 2. conservatio rerum ex parte altra." On that basis he defines: "Avaria grossa vel grandis est, cum quaedam merces jaciuntur in mare levandae laborantis navis gratia, aut armamenta navis, malus, anchorae, rudentes, communis periculi removendi. causa dejiciuntur vel caeduntur voluntate navigantium, atque hoc damnum contribmionc omnium atque ipsius etiam nautae resarciatur." Dogmatically, the duty to contribute was by now usually based on "navalis societas" or a "societas et communio tacita". Cf. further e.g. Landwehr, (1986) 8 ZNR pp. 138 sqq.

171 Cf. e.g. W. Senior, Doctors' Commons and the Old Court of Admiralty (1922); Brian P. Levack, The Civil Lawyers in England 1603-1641 (1973); Daniel R. Coquillette, "Legal Ideology and Incorporation I: The English Civilian Writers, 1522-1607". (1981) 61 Boston University LR 1 sqq.

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the High Court of Admiralty.172 From here it came, inter alia, to the Cape of Good Hope,173 and thus it is in the guise of the English doctrine of general average that the lex Rhodia applies in the South African usus modernus of Roman-Dutch law.

172 For details, see Potter's Historical Introduction to English Law (4th ed., 1958), pp. 191 sqq.; Wiswall, The Development ofAdmiralty Jurisdiction and Practice since 1800 (1970).

3 On the Admiralty jurisdiction in South Africa and its history, see Gys Hofmeyr, 1982

Ada Juridica 30 sqq.

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CHAPTER 13

Mandatum

1. The essential characteristics of mandatum

If a member of "the" professions, an advocatus, an agrimensor1 or an architectus,2 did not render his services under a contract of locatio conductio (be it operis or operarum), it did not mean that these activities took place in the purely social sphere without being sanctioned by the law at all. What was objectionable was to work for money, not to enter into a contractual relationship. If, for instance, an advocate3 took care of somebody else's legal problems, he might consider it to be infra dignitatem to receive a salary. On the other hand, he could expect not to lose out. Thus, he ought to be able to claim damages and to be reimbursed for any expenses that he might have incurred on behalf of his client. The latter, in turn, would often rely on the advocate's undertaking to bring his case to court, to represent him in the trial or to make up a rhetorically convincing argument. Thus, where this sort of commitment was intended, the parties usually entered into a contract of mandatum.

Mandatum, like emptio venditio and locatio conductio, but unlike commodatum and depositum, was a consensual contract.4 Like commodatum and depositum, but unlike the other consensual contracts, it was a necessarily gratuitous transaction: "Mandatum nisi gratuitum nullum est."5 Where a reward was fixed, the contract was locatio conductio, not mandatum: "In summa sciendum est mandatum, nisi gratuitum sit, in aliam formam negotii cadere: nam mercede constituta incipit locatio et conductio esse."6 In fact, the lack of any agreed upon counterperformance is emphasized so often as an essential characteristic of the contract of mandatum, that we may well doubt whether the actual practice was always in conformity with contractual theory.

A contract of mandatum gave rise, in any event, to the actio mandati (directa). This was a iudicium bonae fidei and lay for "quidquid ob earn

1 On these cf. e.g. Ulp. D. 11, 6, 1 pr.; Antoine Bernard, La Remuneration des Professions Liberates en Droil Romain Classique (1936), pp. 103 sqq. and Karoly Visky, Geistige Arbeit und die "artes lihetales" in den Quellen des romischen Rechts (1977), pp. 39 sqq.

2 Visky, op. cit., note 1, pp. 95 sqq. J Cf. supra, p. 390, note 34.

4Paul. D. 17, 1, 1 pr.: "Obligatio mandati consensu contrahcntium consistit." Convenient consequence: "Ideo per nuntium quoque vcl per epistulani mandatum suscipi potest." For details, see Watson, Mandate, pp. 61 sqq.

5Paul. D. 17, 1, 1, 4. Cf. further Gai. Ш, 162; lav. D. 17, 1, 36, 1; Watson, Mandate, pp. 102 sqq.; Michel, Gratuite, pp. 185 sqq.

6Inst. Ill, 26, 13.

413

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rem Nm Nm A° A° dare facere oportet ex fide bona".7 Thus the mandator was able to enforce proper execution of what the mandatarius had undertaken to do;8 apart from that, the mandatarius had to hand over to the mandator whatever he received on account of or in the execution of the mandate.9 The mandatarius, on the other hand, could sue the mandator only if, in the course of carrying out the mandate, he had incurred expenses10 or suffered damages.11 To this end an actio mandati contraria, with a formula identical to that of the actio mandati directa,12 was available to him. This did, however, make mandatum neither a (perfectly) bilateral13 nor a reciprocal contract. The counterclaim was not bound to arise, but depended upon the circumstances of the case; and the mandatory did not agree to carry out the commission in order to obtain reimbursement of expenses or compensation for damages.

7Lenel, EP, pp. 295 sq. On the obligations of the mandatary cf. Vincenzo Arangio-Ruiz,

//mandate in diritto romano (1949), pp. 159 sqq.; Watson, Mandate, pp. 178 sqq.

K Particularly, the mandatarius was not allowed to exceed the terms of the mandate (fines mandati). If he did, he was liable to the mandator under the actio mandati, but was himself not able to sue the mandator for reimbursement of his expenses (actio mandati contraria). There was, however, a school dispute as to how far this principle should be carried. A commissions В to purchase a farm for not more than 100, but Б buys it for 150. В is prepared to transfer the farm to A for 100; can he force A to accept it? No, according to the rigid approach of the Sabimans (Gai. HI, 161); yes, according to the interpretatio benignior of the Proculians (favoured by Justinian and the writers in later centuries—cf. e.g. GLiick, vol. 15, pp. 273 sqq.). Justinian relates the dispute in the following terms (III, 26, 8): "Is qui exsequitur mandatum non debet excedere fines mandati. ut ecce si quis usque ad centum aureos mandaverit tibi, ut fundum emeres . . ., [non] pluris emere debes . . .; alioquin non habebis cum eo mandati actionem: adeo quidem, ut Sabino et Cassio placuerit, etiam si usque ad centum aureos cum eo agere velis, inutilitcr te acturum, diversae scholae auctores recte te usque ad centum aureos acturum existimant: quac sententia sane benignior est." There is much dispute, today, about what the prevailing view in classical law was and how certain other texts dealing with this problem (esp. Paul. D. 17, 1, 3-5; Gai. D. 17, 1, 41) ought to be understood; cf. Arangio-Ruiz, op. cit., note 7, pp. 168 sqq.; Fritz Pringsheim, "Noch einmal Gai. 3, 161 und Inst. Just. 3. 26. 8", (1955) 72 ZSS 54 sqq.; Watson, Mandate, pp. 185 sqq.; Paul van Warmelo, "Wanneer die Lashebber sy Opdrag tc buite gaan", 1964

Acta Juridica 1 sqq.; F.B.J. Wubbe, "Benignus redivivus", in: Symbolae iuridicae et historicae Martina David dedicatae, vol. I (1968), pp. 246 sqq.

9 Cf. e.g. Ulp. D. 17, 1, 10, 6; Ulp. D. 17, 1, 8, 3; Paul. D. 17, 1, 20 pr.

10 Ulp. D. 17, 1, 12, 9; Pap. D. 17, 1, 56, 4; Gai. D. 17. 1, 27, 4; Cels. D. 17, 1, 50, 1; Watson, Mandate, pp. 154 sqq.; cf. also Bernardo Albanese, "'Judicium contrarium' e 'ignominia' nel mandato", (1970) 21 lura 1 sqq. The test for the recoverability of expenses was not whether the mandator had actually benefited but whether the mandatarius had incurred th:m bona fide as a result of the mandate. Cf. today § 670 BGB (". . . which he mav regard as necessary under the circumstances").

1 Cf. irAa, pp. 430 sq.

12Lenel, EP, pp. 295 sq.

13But see Guido Donatuti, "Contributi alia teoria del mandato in diritto romano, II. La volonta del mandante", in: Studi di diritto romano, vol. I (1976), pp. 351 sqq.; but see Arangio-Ruiz, op. cit., note 7. pp. 87 sqq.; cf. also Fritz Schwarz, "Die Kontrarklagen", (1954) 71 ZSS 171 sqq., 218 sqq.; Kaser, RPr I, p. 579.

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2.The gratuitousness of mandatum

(a)Officium et amicitia

"Mandatum . . . originem ex officio et amicitia trahit."14 It was the extralegal social-value system of the Romans which accounted for the (relative) popularity of this type of contract. The (wealthy) Roman citizen, when called upon to take care of some matter for another person, felt honour-bound to carry out the task entrusted to his charge. He acted altruistically, in accordance with what could be expected of a man of his status and conforming to a code of ethics based on pietas, fides, reverentia and amicitia. He did not act for personal gain. Thus, he did not ask to be paid. Nothing, however, could prevent the mandator from showing his gratitude by way of a present.15 If there was a moral duty on the iuris consultus to give an expert opinion to a friend who approached him, the latter was similarly obliged somehow to remunerate him for this service;16 it it was a matter of honour for the mandatarius to act on behalf of the mandator, there was nothing wrong with the latter providing an honorarium in return for the services rendered: a visible sign of his estimation, with which he, in turn, honoured the mandatarius. This honorarium, as it came indeed to be called,17 was a "remuneration" in the true sense of the word: a present given for a cause ("munus"), namely (in this instance) in return for a service.18

(b) Payment of an honorarium

So much emphasis on liberality and altruism sounds impressive but—considering the realities of daily life—also somewhat hypocritical. Take again the "free" professions such as the advocacy. By the time of classical law, an advocate expected to be remunerated for his services, and the giving of an honorarium had become generally accepted practice.19 However, the contractual relationship was still regarded as a mandatum, with the consequence that such payment was not legally owed (and could not be enforced). The reason for this seems to have been that the advocacy and the pursuit of the other artes liberales was still not regarded as a "profession".2" "One" did not have to work in order to earn one's living. Instead, one was able to devote one's time to

14 Paul. D. 17, 1, 1. 4. Cf. also Cicero, Pro Sexto Roscio Amerino oratio, XXXVIII—111 sqq. and, generally, Schulz, Principles, pp. 223 sqq.

■ "Gratiam vero referre, ec gratuitam operam remunerare amicitiac non est contrarium, scd bene convenit" (Lauterbach, Collegium theoretico-practiatm. Lib. XVII. Tit. I, XIV).

16 For parallels in the case of loan transactions (mutuum was also, nominally, a gratuitous transaction!), cf. Alfons Btirge, "Vertrag und personale Abhangigkeiten im Rom dcr spaten Rcpublik und der fruhen Kaiserzdt", (1980) 97 ZSS 122 sqq.

" Cf. e.g. Ulp. D. 11, 6, 1 pr. 1H Cf. Michel, Gratuite, pp. 279 sq.

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serving the community by playing an active role in public life. The wealthy, well-connected Roman citizen of the time of the Republic tried to pass through the so-called cursus honorum,21 until one day he became consul, proconsul, senator and elder statesman. These offices were not regarded as paid jobs, and the political independence of the office-bearers was always based, to some extent, on their material independence. Thus, it was one's leisure that one devoted to the public weal. The same applied in private affairs. If one took care of some matter for another person, one gave of one's free time. Any remuneration was therefore in the nature of a present, rather than a price for the time and trouble taken. That time did not have a price because it would in any event not have been invested profitably (in a material sense).22

(c) С 4, 35, 1

If we have repeatedly referred to the impersonal "one", it was in order to indicate that to some degree (and increasingly so, with the withering away, in the course of time, of the old Roman value system) we are dealing with a pose. Many of the artes Hberales had become profitable occupations, and many of those practising them made their living from the honoraria earned. Still, they preferred to be seen as generous and altruistic friends and counsellors. It was only in the course of the Principate that most of these social perceptions changed—changes which we finally find acknowledged and accommodated in late classical jurisprudence.

"Adversus eum cuius negotia gesta sunt", we read in a rescript inscribed Scvcrus and Antoninus,23 "de pecunia quam de propriis opibus vel ab aliis mutuo acceptam erogasti, mandati actione pro sorte et usuris potcs cxperiri. de salario quod promisit a praesidc provinciae cognitio praebebitur."

The first sentence tells us nothing new. The mandatarius, in carrying out the mandate, has spent a sum of money. The actio mandati allows him to claim reimbursement of the capital and interest. But what about the "salary" that the mandator had promised? It cannot be sued for under the normal formulary procedure. However, the mandatarius is no longer without legal protection, for he will be able to proceed via the more modern and informal cognitio extra ordinem.

(d) Receipt of a salarium

By the time this rescript was drafted, receipt of a certain, predetermined sum of money in return for one's services no longer appeared to be in any way degrading. On the contrary: the term "salarium" carried

21Cf. e.g. Berger, ED, p. 422.

22Cf. Michel, Gratuite, p. 188.

23C. 4, 35, 1. According to Tony Honore, Emperors and Lawyers (1981), pp. 97, 56 sqq., this rescript was drafted by Papinian, the then secretary a libellis.

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distinctly aristocratic connotations and cannot, for instance, simply be equated with its modern English or French derivatives "salary" or "salaire".2* The term "salarium" itself derives from "sal"25 and can best be translated as salt-money. We only have to refer to St. Matthew 5, 13 ("Ye are the salt of the earth") in order to appreciate the high value set on salt in antiquity.26 Its importance as an indispensable spice was often stressed; in Rome it also had a specific sacral significance, for it was an essential ingredient of the so-called mola salsa.27

But it was not only the term "salarium" as such that was free of low-class connotations. Since the time of Augustus, imperial functionaries of senatorial or equestrian rank outside Rome were in receipt of a fixed salarium; they had become "salaried" officials.28 According to Cassius Dio,29 a proconsul, for instance, received an annual sum of one million sesterces. These reforms constituted a significant break with the old idea of the important magistracies necessarily being gratuitous offices, and they did not leave the general social estimation of gratuity unaffected. If it was not demeaning for a former consul to administer one of the senatorial provinces for payment, how could it be socially objectionable for an advocate or a doctor to ask for a reward for their professional services? Thus, there was increasing pressure to make salaria that had been agreed upon for private services legally exactable too. This seems to have happened, first of all, in the case of procurators.30

Originally, the procurator31 omnium bonorum had been a freedman, sometimes even a slave, whom wealthy people used to have as a general manager of their property. Legal relationships between the patronus and his libertus, the dominus and his slave, did not exist. Nevertheless, both patronatus and patria potestas involved reciprocal (moral and social) duties, and thus the dominus negotii was expected either to allow his procurator enough free time to earn his own living, or he had to feed him. With the general dissolution of the extra-legal power relationships and with the corresponding rise of the procurator's social esteem, it became acceptable to base procuratio omnium bonorum on

24Michel, Gratuite, p. 192.

25Plimus Sccundus, Historia naturalis. Lib. XXXI, 41, 89.

2( 1 Cf. e.g. Walter Hatto Gross, in: Kleiner Pauly, vol. IV, col. 1528 sq.

-7 Plinius Secundus, loc. cit. As to the meaning of "mola salsa", c{. e.g. Konrat Ziegler, in: Kleiner Pauty, vol. Ill, col. 1398; it was customary to strew a mixture of coarsely ground meal and salt over victims.

Cf. e.g. Mommscn, Romisches Staatsrecht, vol. I, pp. 300 sqq. This salarium succeeded the earlier vasarium, a lump sum which the Roman officials had received to cover the costs of outfit and equipment (derived from vasa, baggage); cf. Hans Gartner, in: Kleiner Paitly, vol. V, col. 1141.

29Cassius Dio, Historia Romana, LXXIX, 22, 5.

30Arangio-Ruiz, op. at., note 7, pp. 114 sqq.; Watson, Mandate, pp. 103 sqq.; Michel,

Gratuite, pp. 192 sq.

■ Cf. the literature quoted supra, p. 53, note 138; on the relationship between mandatum and procuratio cf. also Watson, Mandate, pp. 36 sqq.

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a mandate.Л2 Of course, the procurator could not be expected to devote all his time to the administration of somebody else's property without any recompense. Thus, it became customary to give him, at regular intervals, instead of food, a sum of money: salarium in the place of (pars pro toto:) sal. By the time of Papinian, the claim for such a salarium had become legally enforceable.33 The same applied to the salaria or honoraria of the members of the "liberal" professions.34 Advocates, incidentally, seem to have been particularly greedy, as we can see from the repeated attempts of various emperors to fix maximum limits for their professional charges.35

All in all, then, by the end of the era of classical law, the lawyers had worked out a characteristically Roman solution. The old legal institutions remained unchanged; mandatum was still a gratuitous contract, and thus the actio mandati was not available to sue for either salarium or honorarium. At the same time, however, practical demands and new social perceptions were not simply ignored, for the mandatarius could resort to the cognitio extra ordinem procedure if the mandator refused to pay the recompense agreed upon. This is not contradicted by Ulp. D. 17, 1, 6 pr.: "Si remunerandi gratia honor intervenit, erit mandati actio." What this text says is not that, where an honorarium had been agreed upon, it could be sued for with the actio mandati.36 Such an interpretation would be incompatible with all our other sources. Ulpianus rather seems to have stressed that the intervention of an ex gratia payment for the service rendered does not prevent the contractual relationship between the parties from being a mandate.37

(e) Mandatum nisi gratuitum nullum: the ius commune

Nevertheless, one cannot help remarking that the gratuitousness of mandatum was by now a matter of form rather than of substance. This must have become particularly obvious at a time when the distinction

procurators of highe r social standing made the mselves available to look after the inte re sts of

followin g re ason: "cst quide m res sanctissima civilis sapie ntia, se d quae pre tio num ma rio non sit ae stimanda nee de honestanda" (Ulp. D. 50, 13, 1, 5; tor an analysis, ct. Diete r N orr, "I urispentus sacerdos", in: EENI ON, Festschrift fur Pan. j. Zepos, vol . I (1973), pp. 555 sqq.

3 Claudius fixed a maximum limit of 10 000 sesterces; cf. also e.g. C. 7, 72 of Diocletian's edictum de pretiis renun venalium (Siegfried Lauffer (ed.), Diokletians Pteisedikt (1971), p, 124); for further details about lawyers' fees cf. Ulp. D. 50, 13, 1, 9 sqq.; Paul. D. 19, 2, 38, 1; Michel, Grattiite, pp. 215 scjq.; Visky, op. cit., note 1, pp. 60 sqq. A pactum de quota litis was inadmissible: Ulp. D. 50, 13, 1, 12; Ulp. D. 17, 1, 6. 7; Pap. D. 17, 1, 7.

36Arangio-Ruiz, op. cit., note 7, pp. 117 sq., who consequently suspects interpolation.

37Cf. e . g. Glu ck, v ol . 15, p. 28 6; W atson, Ma n d ate , pp. 110 sq q.

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vanished. Many authors of the ius commune still maintained the principle of "mandatum nisi gratuitum nullum est". On the other hand, they faithfully recorded that an actio extraordinaria was available for the recovery of salaria or honoraria that had been promised. But what was the practical relevance of hanging on to outdated procedural niceties? And if there was none, how could one still seriously maintain that mandatum was gratuitous?

Various solutions were suggested to resolve this problem. Thus, for example, a distinction was drawn between mandate and an innominate contract of the type of facio ut des,38 depending on whether a remuneration for the professional services had been promised or not.39 Others tried to distinguish between honorarium ("voluntaria operae gratis praestitae remuneratio")40 and salarium ("[sjalarium . . . definimus, quod sit, iusta debitaque laboris sive operae sumptae sumendaeve, vel etiam officij in quacunque, re, ad referendam vicem compensatio, permutatio, remuneratio, adaequatio"):41 only the former was compatible with the contract of mandatum.42 Others, again,43 focused on the nature of the service. If it was such that a value could not be attached to it—and that was usually the case with regard to the "liberal" professions—then whatever remuneration the mandator might have promised could not be regarded as the price of the service which the mandatory had agreed to perform: and whether such remuneration was called honorarium or salarium, it was thus compatible with the (essentially gratuitous) nature of mandatum. Pothier provides an example:44

"I seek out a famous lawyer, in order to ask him to assume the defence of my case: he replies that he is willing to undertake it. I thank him for his reply, and I tell him that, to give him a slight indication of my gratitude,45 I will present him with Meerman's Thesaurus, which does not figure in his library. He replies that he willingly accepts my present which I offer him with such good grace. Now, although I promise the lawyer Meerman's Thesaurus, the contract existing between us continues to be a contract of mandate, because what I promise to give him is not the price to be paid for the defence of my case which he has undertaken. The defence of my case which he undertakes, is something to which a specific value cannot be attached, and the mandate continues to be a contract of mandate. . . ."

A few lines later, however, it becomes obvious how tenuous this argument really is: for here the same author is prepared to admit that there are, none the less, certain services for which, even though they

38 Cf. infra, pp. 534 sq. w Cf. e.g. Gluck, vol. 15, pp. 285 sqq. 40Vinnius, Imtitutiones, Lib. III. Tit. XXVII, 13, n. 1.

41Iacobus Gothofredus, Tractatus novus et practkus de salario (Gcnevae, 1666), Cap. I, III.

42For details cf, D.J. joubcrt, "Die kontraktuele verhouding tussen professionele man en klient", 1970 Actajuridica 15 sqq.

43Cf. e.g. Pothier, Traite du contrat de mandat, n. 23; also Dernburg, Pandekten, vol. II,

§115 in fine.

44Traite du contrat de mandat, n. 23 (quoted from a translation by B.G. Rogers (ed.) (Lex Patria, 1979)).

45Pothier says: "pour hit donner une faibie marque de ma reconnaissance''.

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belong to a liberal profession and in consequence fall under a contract of mandate rather than one of hire, those persons who have rendered them are allowed "en justice" to ask for the normal reward.46

Finally, therefore, there were those who abandoned all this camouflage47 and recognized that mandatum was not necessarily gratuitous after all, and that the actio mandati (contraria) could be used to claim whatever remuneration had been promised. This view was based on a (mis-)interpretation of texts such as Ulp. D. 17, 1, 6 pr.,48 on old Germanic customs49 or simply on the changed perceptions and practices of modern business life.50» 51 It was adopted, in the course of the 19th century, by a whole variety of drafts and codifications,52 including the first draft of the BGB.53 But in the end, as far as Germany is concerned, classical Roman law prevailed again. According to § 662 BGB, it is essential for a mandate that the mandatary binds himself gratuitously to take care of some matter for the mandator entrusted to him by the latter. The "quaestus liberales", however, were subjected to the regime of locatio conductio (operis or operarum, as the case might be):54 against strong opposition from both the medical and legal professions.55 Yet, in common parlance, the terms "Mandat" and "Honorar" live on, particularly with regard to services rendered by lawyers.56

3.The range of application of mandatum

(a)Factual and contractual activities of the mandatarius

All the other features of mandatum either follow from what has already been set out or from general principles. Mandatum, in a way, was a

46Pothier, Traite du contrat de mandat, n. 26.

47"Spitsvondighede", according to De Wet en Yeats, p. 341.

4H Cf. e.g. Lauterbach, Collegium (heoretico-practicum. Lib. XVII, Tic. I, XV; Stryk, Vsus modernus pandectarum, Lib. XVII, Tit. I, § 18.

4У Johann Gottlieb Heineccius, "Elements Juris Germanici" (in: Opera omnia (Genevae, 1748)), Lib. II, § CCCLXXXH.

f Gliick, vol. 15, p. 322; "Motive", in: Mugdan, vol. II, p. 295.

з! Problem: was the honorarium then not really tantamount to merces? Why stilt maintain a distinction between operae liberales (contractual regime: mandatum) and other operae

(locatio conductio)? A statement such as "[Die operae liberales werdetij nicht bezahlt, sondern hanorirt" (Dernburg, Pandekten, vol. II, § 115 in fine) sounds like a petitio principii. Further problem: could an honorarium be charged, if it had not been expressly promised at the time of conclusion of the contract, but where the mandatary was a person who did not normally render services of the kind in question gratuitously? Cf. (in the affirmative) Lauterbach,

Collegium theoretico-practiaim, Lib. XVII, Tit. I, XV; Stryk, Usus modernus pandectarum, Lib. XVII, Tit. I, § 18; Vinnius, Institutions*, Lib. Ill, Tit. XXVII, 13; Pothier, Trait? du contra! de mandat, nn. 24, 26. Contra e.g. Gliick, vol. 15, p. 291.

32 References in "Motive", in: Mugdan, vol. II, p. 295.

53§ 586 E I.

54Cf. supra, p. 393; but according to § 675 BGB, many of the rules relating to mandate are applicable, if the contract of service or for work has as its object the taking care of a matter. For details, see Hans-Joachim Musielak, "Entgeltliche Geschaftsbesorgung", in:

Gutachten und Vorschlage гиг Uberarbeitung des Schuldrechts, vol. II (1981), pp. 1209 sqq.

55"Protokolle", in: Mugdan, vol. II, pp. 897 sq.

56As far as the "honoraria" of teachers are concerned, cf. § 196 I, n. 13.

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