!!Экзамен зачет 2023 год / The Law of Obligations

counterpart to locatio conductio: depending on whether or not a reward had been fixed for the carrying out of the commission, the transaction fell either into the one or the other contractual niche.57 Mandate therefore covered a wide range of situations. The mandator could request the mandatary to clean clothes,58 to build a tomb59 or to engage in any other (factual) activity. Usually, however, the mandatary was asked to enter into a contractual relationship with a third party: be it that the mandator wanted him to lend or borrow money,60 to stand surety,61 to buy or sell a farm or to let or hire a slave. This is what we call indirect representation: A could use В to conclude a contract for him with C. However, it was not A who became obliged and entitled to С (that would have been direct representation, which Roman law did not know)62 but B, the "agent", himself. В was then bound under the mandate to hand over what he had acquired to A; A in turn had to indemnify B. Particularly the procurator acted in this manner as an indirect representative of his principal; as we have seen, in classical law his social status had become such that he was commissioned, as a rule, by way of a contract of mandate.

In later centuries, mandatum (extraiudiciale or iudiciale) became the contractual cornerstone of direct representation; for once this institution had come to be recognized,63 and before Laband had isolated the granting of authority as something different (and abstract) from the internal contractual relationship between principal and agent,64 the contract of mandate usually provided the basis for the agent's ability to act in the principal's name.65

(b) Illegal and immoral mandates; the mandatum tua tantum gratia

It hardly need be emphasized that illegal or immoral mandates were void;66 thus one could not validly commission a person to sack a temple or to wound a slave.67 Apart from that, as in any other contract, the object of the transaction had to be determined.69 A mandatum incertum

57Cf. Gai. Ill, 162, However, where something was handed over for safekeeping without any reward being fixed, there was the more special contract of depositum: cf. Ulp. D. 16, 3, 1, 8. On this and other details relating to the object of mandatum, see Watson, Mandate, pp 78 sqq.

58Gai. Ill, 162.

59Marc./Ulp. D. 17, 1, 12, 17.

60On the so-called "mandatum qualificatum", see supra, pp. 139 sqq.

61Cf. supra, p. 133.

62Cf. supra, pp. 45 sqq.

63Cf. supra, pp. 56 sqq.

64Supra, pp. 57 sq.

65Cf. e.g. Gluck, vol. 15, pp. 323 sqq.; Coing, p. 463.

66Gai. Ill, 157; Inst. Ill, 26, 7; Voet, Commentarius ad Pandectas, Lib. XVII, Tit. I, VI; Gluck, vol. 15, pp. 254 sqq.; Arangio-Ruiz, op. cic, note 7, pp. 105 sqq.; Watson, Mandate, pp. 88 sqq.

67Paul. D. 17, 1, 22, 6.

68Arangio-Ruiz, op. cit., note 7, pp. 109 sqq.; Watson, Mandate, pp. 92 sqq.

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(e.g. to purchase for the principal any farm) was (probably) invalid,69 although a certain discretion could be left to the mandatary, at least as far as incidental points were concerned.70 However, there was one further, very interesting limit to the range of possible mandates: the mandatary could not bind himself to take care of his own affairs. Our sources consistently emphasize that a mandate cannot validly be concluded wholly in the interest of the mandatary. Such a mandatum tua tantum gratia, as it came to be called ("tua" as seen from the perspective of the mandator), was said to be "supervacuum". The reason is explained by Gaius71 as follows: "[Q]uod . . . tu tua gratia facturus sis, id de tua sententia, non ex meo mandatu, facere debes"; and Justinian72 added: "[Cjuius generis mandatum magis consilium est quam mandatum et ob id non est obligatorium. "73 If I ask another person to invest his money by purchasing land or to grow tulips in his front garden, I am not giving him a commission but a piece of advice. What he does with his money or with his garden is entirely his own affair. He may consult me because I have special banking or gardening expertise. But whatever I advise him to do, I will ultimately have to leave it to him to decide, whether or not he follows that advice. Anything else would be an unacceptable interference with his natural prerogative to attend to his business according to his own discretion. "Qui mandat, vult, et urget, ut fiat quod mandatum est. Qui dat consilium, consultoris arbitrio rem permittit. "74 With regard to the own affairs of the "mandatarius", only the latter alternative is conceivable,75

(c) Types of mandate according to the interest involved

The discussion of the somewhat exceptional situation of the mandatum

69Cf. Cels. D. 17, 1, 48, 1 and 2; but see Watson, Mandate, pp. 96 sqq.

70Cf. e.g. Paul. D. 17, 1, 59, 6; Paul. D. 17, 1, 46.

71III, 156.

72III, 26, 6.

73Cf. further Gai. D. 17, 1, 2, 6.

74Vinnius, Institutiones, Lib. Ill, Tit. XXVII, 6, n. 1.

75On the question whether there can be a mandatum tua gratia which is not consilium, cf. e.g. Vangerow, Pandekten, § 659. Conversely, it is arguable that not every kind of advice or recommendation should be regarded as not binding. Cf., for example, Ulp. D. 17, 1. 16 for a mandatum (in the nature of a proposal) mea et tua gratia. Furthermore, it has often been argued that a mandatum tua tantum gratia is binding, and thus provides the mandatarius with a claim against the mandator, where he would not have acted as he did but for the mandate (arg. Ulp. D. 17, 1, 6, 5: "Plane si tibi mandavero quod tua intererat, nulla erit mandati actio, nisi mea quoque interfuit: aut, si non esses facturus, nisi ego mandassem, etsi mea non interfuit, tamen erit mandati actio"; itp., cf. e.g. Watson, Mandate, p. 120): Stryk, Usus modernus pandectamm, LibXVII, Tit. I, §§ 8 sqq.; Lauterbach, Collegium theoretico-practicum, Lib. XVII, Tit. I, XVI sq.; Voet, Cotnmentarius ad Pandectas, Lib. XVII, Tit. I, IV; Gluck, vol. 15, pp. 250 sqq. See also Windscheid/Kipp, § 412, n. 21, who, however, base the liability on a specific guarantee. Today, cf. § 676 BGB: "A person who gives advice or a recommendation to another is not bound to compensate him for any damage arising from following this advice or the recommendation, without prejudice to his responsibility resulting from a contract or delict."

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tua tantum gratia gave rise to a slightly scholastic attempt positively to identify and categorize the circumstances under which a valid contract of mandatum could be concluded. Of course, it goes back to the law teacher, to Gaius. He drew a distinction between mandatum mea gratia, tua gratia and aliena gratia.76 Later on, he refined this system by adding the possible combinations of mixed interest: "Mandatum inter nos contrahitur, sive mea tantum gratia tibi mandem sive aliena tantum sive mea et aliena sive mea et tua sive tua et aliena."77 Thus (leaving out mandatum tua tantum gratia) we arrive at a fivefold subdivision. It is obvious that the mandate mea gratia (i.e. in the interest of the mandator) is the normal type and does not present any difficulties. Much more problematic is mandatum aliena gratia: a mandate in the interest (purely) of a third party. Justinian provides an example: "Aliena autem causa intervenit mandatum, veluti si tibi mandet, ut Titii negotia gereres, vel ut Titio fundum emeres, vel ut pro Titio sponderes."78 A commissions В to take care of the affairs of C. Of course, this type of transaction cannot give rise to an action on the part of C; that would have been a (genuine) contract in favour of a third party. But even as far as the relationship between mandator and mandatary is concerned, it is difficult to see how В can incur an (enforceable) obligation: alteri stipulari nemo potest; and we know that this principle did not apply only to stipulations but also to all kinds of informal, consensual transactions.79 A mandatum aliena tantum gratia is characterized, per definitionem, by a lack of an actionable interest in the person of the mandator. How, under these circumstances, can he bring the actio mandati against the mandatary? And yet, our sources treat the mandatum aliena tantum gratia as valid.80 The solution to this apparent discrepancy seems to be implicit in the manner in which Ulpianus describes the situation in D. 17, 1, 8, 6: "Mandati actio tune competit, cum coepit interesse eius qui mandavit: ceterum si nihil interest, cessat mandati actio." At the time when В promises A to take care of C's affairs, A does not have an (actionable) interest in the matter: otherwise we would be dealing not with mandatum aliena tantum, but with mea et aliena gratia. But such an interest may well arise subsequently. For once В has taken charge of C's affairs, A may be liable to С under an actio negotiorum gestorum (directa): by commissioning В in the way he did, A himself took care of a matter for another (C), without having received a mandate from him or being otherwise entitled to do so. This unsolicited meddling with his affairs81 may be unwelcome to C, Even

76Gai. Ill, 155.

77Gai. D. 17, 1, 2 pr. (taken from his Res cottidianae). Cf. also Inst. HI, 26 pr.

7H Inst. Ill, 26, 3.

79Cf. supra, p. 35, note 6.

80Cf. e.g. Gai. D. 17, 1, 2, 2; Ulp. D. 17, 1, 6, 4.

81Watson, Mandate, p. 116. Cf. further the detailed analysis of Seiler, Negotiorum gestio, pp. 114 sqq., who confirms that it is the mandator, and not the mandatarius, whom the

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if it is welcome, however, С may have suffered a loss, since he may well have relied on the action of the mandatary and thus abstained from taking care of the matter himself.82 The actio mandati can therefore indeed only be brought by A against B, and the mandatum aliena tantum gratia can be regarded as valid only, if and when the former has an actionable interest: and that is entirely in harmony with what we have discussed above about the inherent limitation of alteri stipulari nemo potest.83

It is obvious that, if mandata mea and aliena gratia were valid, so were mandates based on a mixed interest:84 for they were at least partially in the interest of the mandator and/or a third party, even though they might also be in the interest of the mandatarius. It may be remembered that in the form of a "mandatum qualificatum" the mandatum tua et aliena gratia provided a useful suretyship transaction. In Justinian's Institutes we find the typical example: "Tua et aliena, veluti si [quis] tibi mandet, ut Titio sub usuris crederes."85 If Titius cannot repay, the mandatary may take recourse against the mandator. The latter is therefore effectively in the position of a surety.86

4. Mandatum morte solvitur

Mandatum was based on personal confidence, on fides and amicitia.87 Any breach of trust on the part of the mandatarius was seen in a most serious light and condemnation under the actio mandati therefore involved infamia.88 Furthermore, the mandate ended with the death of either of the parties: mandatum morte solvitur.89-y" Mandator and

classical lawyers regarded as negotiorum gestor in the case of mandata aliena tantum gratia. On the mandatum aliena gratia, see also Wieslaw Litewski, "lnteresse des Auftraggebers, des Dritten und des Beauftragten", (1975) 78 BIDR 193 sqq. (227 sq.).

For the traditional argument along these lines cf. e.g. Vinnius, Institittiones, Lib. Ill , Tit. XXVII, 3; Pothier, Traite du contrat de mandat, n. 17; Gluck, vol. 15, p. 249. Contra Watson, Mandate, pp. 116 sqq., who does not, however, present an alternative solution. нз Cf. supra, pp. 35 sqq.

84For examples cf. Gai. D. 17, I, 2, 3, 4 and 5; Inst. Ill, 26, 2, 4 and 5; for a discussion, see Litewski, (1975) 78 BIDR 193 sqq.

85Inst. Ill, 26, 5.

86For details c(. supra, pp. 139 sqq.

87 Etymologically, "mandatum" is derived from "mai ms" and "dare" (cf. e.g. Voet, Commentarius ad Pandectas, Lib. XVII, Tit. I, I ("Mandatum dictum a datione manus . . . et manus fidei signum erat."); Vinnius, Institutiones, Lib. HI. Tit. XXVII pr.). In Rome, one did not shake hands as profusely as one does in modern Germany, for instance. The gesture of offering one's right hand was a most intimate sign of friendship, and was reserved for grand and important occasions. Cf. Michel, Gratuite, pp. 170 sq.; W.H. Gross, "Salutatio", in: Kleiner Pauly, vol. IV, col. 1524 sq.

88 Gai. IV, 182. Was the actio mandati contrana famosa too? Cf. Fritz Schwarz, "Die Kontrarklagen", (1954) 71 ZSS 210 sqq.; Albanese, (1970) 21 lum 1 sqq.

H9 Paul. D. 17, 1, 26 pr.; Gai. Ill, 160; Gai. D. 17, 1, 27, 3. For details, see Hamed A. Rabie, L'acte juridique "post mortem" en droit romain (1955), pp. 85 sqq.; Watson, Mandate, pp. 125 sqq.; Manfred Harder, "Zum transmortalen und postmortalen Auftrag nach romischem und gelcendem Recht", in: Sein und Werden im Recht, Festgabe fur USrich von Lubtow (1970), pp. 518 sqq. Today cf. § 673 BGB ("In case of doubt, a mandate is

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mandatarius had placed their confidence in each other, not in each other's heirs. With the person of either of them, the essential basis of their contractual relationship falls away too. However, there were certain modifications to this rule. It applied "integro mandato" only, that is, before the mandate had been acted upon.91 If the mandate was "under way",92 i.e. if the mandatary had started to carry out the commission but had not yet completed it, it had to be carried out, irrespective of whether the mandator or the mandatarius had died over it. The practical effects of the principle of mandatum morte solvitur were also mitigated in instances where a mandatarius had executed the mandate in the belief that the mandator was still alive. Legal protection for such bona fide acts post finem mandati was accomplished by means of actiones utiles.93

A different, though closely related, question is whether the parties to a mandate could specifically arrange that it be carried out after the death of either of them. Justinian, while retaining the rule that a mandate was dissolved by death, allowed the conclusion of such mandata post mortem.94 In this respect he deviated from the position adopted by the classical lawyers, who had disapproved of both mandata post mortem mandatarii and niandatoris as being in conflict with the personal nature of mandatum.95 More particularly, the latter (example: "si, ut post mortem sibi monumentum fieret, quis mandavit")96 would have run counter to the idea that the heirs of the mandator should be free to chose a person of their confidence; the mandatum post mortem mandatarii, on the other hand, is inutile97 (in the sense of useless, impractical and

extinguished by the death of the mandatary") and § 672 BGB ("In case of doubt a mandate is not extinguished by the death of the mandator"). The latter rule was introduced in conscious deviation from the ius commune (Windscheid/Kipp, § 411, 2), § 186 I 13 PrALR. art. 2003 code civil and § 1022 ABGB; cf. "Motive", in:" Mugdan, vol. II, p. 306; "Protokolle", in: Mugdan vol. II, pp. 954 sq. But sec Harder, Festgabe von Liibtow, pp. 529 sqq. for a reinterpretation more in line with historical precedent.

1 Similarly, the mandate came to an end if, re integra, the mandator revoked (revocare; cf. Gai. Ill, 159) or the mandatary renounced (renuntiare; cf. Paul. Sent. II, XV, 1) the contract. The second of these propositions is, however, questionable, for a discussion, see Gltick, vol. 15, pp. 354 sqq.; Arangio-Ruiz, op. cit., note 7, pp. 134 sqq.; Watson, Mandate, pp. 70 sqq.; Philippe Meylan, "Revocation et renonciation du mandat en droit romain classique", in: Studi in onore di Giuseppe Grosso, vol. I (1968), pp. 463 sqq. Cf. today § 671 BGB.

is extinguished other than by revocation, it is. nevertheless, deemed to continue in favour of the mandatary, until he knows or ought to know of its extinction."

94C. 8, 37,' 11; С 4, 11, 1.

95For details, see Arangio-Ruiz, op. cit . , note 7, pp. 142sqq.;J.C. van Oven, "Gaius, 3, 158: Mandatum post mortem mandantis". in: Symbolae Raphaeli Taubemchiag, vol. I (1956), pp. 529 sqq.; Watson, Mandate, pp. 133 sqq.; Harder, Festgabe von Liibtow, pp. 523 sqq.;

Kaser, RPr I. p. 578; but see Cesare Sanfilippo, "Ancora un caso di 'mandatum post mortem'?", in: Sodalitas, Scritti in onore di Antonio Guarino, vol. V (1984), pp. 2047 sqq.

96 Marc./Ulp. D. 17, 1, 12, 17. '" C.ai. III. 158.

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therefore invalid),98 in that a mandator could not conceivably have a reasonable interest in commissioning, of all people, the heirs of a particular person: they are, after all, not even known yet!

5.The liability of the mandatarius

(a)Dohts or dolus and culpa?

Mandatum was a gratuitous transaction. This must have been an important feature in determining the standard of liability imposed upon the mandatary. Usually, as we have seen, the balance of interests within a contractual relationship and the standard of liability corresponded." Thus, for instance, the depositarius, who did not receive any remuneration and who acted essentially altruistically, was normally liable only for dolus (and, to some extent, for culpa lata).100 We might therefore expect the liability of the mandatarius to be restricted in a similar manner. And indeed, we possess a general statement by Modestinus (preserved outside the Corpus Juris Civilis) to this effect: "In mandati vero iudicium dolus, non etiam culpa deducitur. "101 Several texts in both the Digest and Code tie in with this. But then there is also a variety of fragments pointing in a different direction and declaring the mandatarius to be liable for culpa. Again, we even have a statement of a general nature, this time by Modestinus' teacher, Ulpian:

"[DJolum et culpam mandatum, commodatum, venditum, pignori acceptum, locatum, item dotis datio, tutelae, negotia gesta [recipiunt]: in his quidem et diligentiam."102

How can we reconcile this apparent conflict of opinions? Interpolation hypotheses have provided a popular and convenient answer. As a result, for some time, the view prevailed that in classical law the mandatary was liable for dolus only. Later on, his liability came to be gradually extended, and references to culpa were interpolated into the classical texts in order to bring them into line with the more modern position.103 Other authors have attributed the transition from dolus to culpa liability to late classical law.104 More recently, an attempt has

even been made to show that, already in high classical law, liability was for culpa.105

98Harder, Festgabe von Lubtow, p. 524.

99Cf. supra, pp. 198 sq.

100Cf. supra, pp. 209 sq.

101Coll. X, II, 3.

102Ulp. D. 50, 17, 23.

103Cf. e.g. Arangio-Ruiz, op. cit., note 7, pp. 188 sqq.; Schulz, CRL, p. 556;

Jors/Kunkel/Wenger, § 139, 2 a; William M. Gordon, "The Liability of the Mandatary", in: Synteleia Vincmzo Amngio-Ruiz, vol. I (1964), pp. 202 sqq.; Wieslaw Litewski, "La responsabilite du mandataire", (1983-84) 12 Index 106 sqq., 119 sqq.

Cf. e.g. Buckland/Stein, p. 516; Hoffmann, Fahrlassigkeit, pp. 21 sqq.; cf. also, as far as Ulpian was concerned, Tafaro, Regula, pp. 276 sqq. 105 Hannu Tapani Klami, Tetieor Mandati (1976).

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(b) Terminological problems

To me, there appears to be a certain element of truth in both the traditional and the two other points of view. For here, as elsewhere, Roman law was not static but developed in time; and this development is bound to have implied a broadening, not a restriction of liability. On the other hand, it is no longer permissible today summarily to suspect and brush aside all references to culpa in our classical sources relating to mandatum. Any analysis of the position in classical law must, however, take account of two further factors, which have been emphasized by Geoffrey MacCormack and Alan Watson respectively. The first of these relates to terminology.106 Culpa, in classical Roman law, did not have a precise, rigidly defined meaning. It could cover a broad range of situations. More particularly, it could be used in (at least) two different ways: it provided (roughly) a Roman equivalent to the modern concept of negligence, i.e. the failure to exercise the care that a bonus paterfamilias would have exercised. But "culpa" could also refer to fault or blameworthiness in general, i.e. including dolus.107 In the first sense, it was complementary to dolus, in the second it comprised it. If employed in the second sense, the term "culpa" could be used where the circumstances in fact disclosed a case of dolus. Thus, for instance, there is not necessarily an inconsistency between the proposition that the mandatary was liable for dolus but not for culpa and a decision in which a specific mandatary was held responsible on account of his "culpa".108

(c) Altruistic and not so altruistic mandatarii

The second point is this. Mandatum, as we have seen, covered a very wide and heterogeneous range of situations. There was the truly altruistic person who took care of his friend's affairs. There was the professional lawyer, doctor or surveyor. There was the procurator in receipt of a salarium. Was it really reasonable to treat all these mandatarii alike, as far as their liability was concerned? Also, we must remember that the mandatarius did not necessarily act solely in the interest of the mandator. Where the mandatum is either mea et tua or tua et aliena gratia, the mandatarius' activity can hardly be described as altruistic, even if he is not remunerated for his services. The contract is (also) in his interest, and thus the dolus liability might not seem adequate. Even in the case of depositum, the standard of liability

1116 Geoffrey MacCormack, "The Liability of the Mandatary", (1972) 18 Labeo 156 sqq. 11)7 For a detailed analysis, see Geoffrey MacCormack, "Culpa", (1972) 38 SDHI123 sqq.;

cf. also idem, (1972) 18 Labeo 156 sqq.; Klami, op. cit., note 105, pp. 2 sqq.

ltM MacCormack, (1972) 18 Labeo 157. Contra: Litewski, (1983-84) 12 Index 107 and passim.

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changed if, for once, the contract was not in the interest of the depositor, but of the depositarius.109

Whilst, therefore, liability for dolus seems to have been the historical starting point,'l0 it is likely that by the time ot classical law the question was approached in a very flexible manner.111 After all, what the judge had to assess was "quidquid ob earn rem Nm Nm A° A° dare facere oportet ex bona fide"; and the yardstick of "bona fides" called for a comprehensive analysis of all factors determining the circumstances of each case.112 Thus, on a more general level, it had to be considered that breach of contract in the case of mandatum was a matter of particular concern:

"Mandati vioiatio violat duas res sanctissimas, amicitiam ct fidem. Idcirco qui res mandatas non modo malitiosius, sed etiam negligentius gesserit, admittit summum deducus."11-3

On the other hand, condemnation involved infamia, a sanction not to be imposed too lightly. More specifically, however, the position of the parties had to be taken into consideration: whether the mandatum was in the interest of mandator, mandatarius and/or third party, and whether the services of the mandatarius were in fact, if not in law, remunerated.

(d) Mandatum: between suretyship and procuratio

If we want to gauge how all this worked out in practice,114 we can take, at the one end of the scale, the liability of a person who stood surety at the request of the (main) debtor. According to Ulpian, he is liable, for instance, if, when sued for the amount owed, he fails to raise certain exceptions, even though he is aware of their availability.115 The same applies if, having paid the debt, he omits to inform the debtor, who consequently pays again.llft In both these instances, the fideiussor is probably not deliberately trying to prejudice the debtor; he simply does not bother to safeguard the position of the latter.117 This type of behaviour does not accord with the precepts of good faith; in fact, it comes very close to dolus. It is, in the words of Ulpian, "dolo proximum";118 or more fully: "dissoluta enim neglegentia prope dolum est."119 Thus we can see that dolus was the normal standard of liability

im Cf. supra, pp. 208 sq.

1111 This is conceded even by Klami, op. cit., noce 105, pp. 13 sqq. 1 Watson, Mandate, pp. 198 sqq.

112Cf. e.g. Kaser, RPr I, pp. 509 sq.

113Donellus, Commentarii de Jure Civiii, Lib. XIII, Cap. XI, XI (n. 5).

114For details of what follows, see Watson, Mandate, pp. 202 sqq.; MacCormack, (1972)

\8 Labeo 158 sqq.

115Ulp. D. 17, 1. 29 pr.

116Ulp. D. 17, 1, 29, 3.

117MacCormack, (1972) 18 Labeo 159.

118D. 17, 1, 29, 3.

mD. 17, 1, 29 pr.

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for this prototype of the altruistic mandatarius, but that there was a tendency to extend the scope of liability to cases of extreme recklessness which were not very far from dolus.120

At the other end of the scale we find the procurator. Here liability seems to have gone beyond what could conveniently be expressed in terms of dolus or dolo proximum: "A procuratore dolum et omnem culpam . . . praestandum esse iuris auctoritate manifeste declarator."121 All the remaining types of mandate fitted in somewhere between: depending upon the circumstances, liability appears to have been sometimes for dolus only,122 sometimes for dolus and culpa lata123 and in other instances for the full range of culpa.124

(e) Spondet diligentiam et industriam negotio gerendo parem

Arguably, then, Justinian's compilers interfered much less with the classical texts than has often been supposed; on the whole, they seem to have been happy to preserve the flexible interpretation of the classical Roman lawyers.125 Such an attitude, of course, made it difficult in subsequent centuries to reconcile the texts on the basis of a unitary formula. Thus, there have always been attempts to show that liability was (or ought to have been) for dolus (and culpa lata).126 By and large, however, when it came to the question of generalizing a standard of liability, Ulp. D. 50, 17, 23, the (not so) "ill-directed tirades of young Cicero"127 and the fragments dealing with procuratio carried the day.128 Even where mandatum was (or is) still regarded as gratuitous (as under the BGB), the scope of liability was usually widened to comprise culpa.129-13° This has often been justified, dogmatically, on the basis of an implied promise, on the part of the mandatarius, to exercise all the care and skill required by the business that he had undertaken to carry

120Further on the liability of the fideiussor, see Ulp. D. 17, 1, 8. 8.

121С 4. 35, 13 (Diocl. et Max.). Cf. further С 4, 35, 4 (Alex.); C. 4, 35, 9 (Diocl. et

Max.); С 4, 35, 11 (Diocl. et Max.); Ulp. D. 17, 1, 10, 1.

122Mod. Coll. X, II, 3; Paul. D. 17, 1, 26. 8.

'Ulp. D. 17, 1, 8, 10 (". . . si tibi mandavi, ut hominem emeres, luque emisti, teneberis mihi, ut restituas. sed et si dolo emere neglexisti (forte enim pecunia accepta alii cessisti ut

emerci) aut si lata culpa (forte si gratia ductus passus es alium cmere) teneberis . . .").

p. 44); Brunnemann, Commentarius in Patidectas, Lib. XVII, ad L. Idemque. 10. pr. et L. 12. pr, nn. 1, 2. Cf. further the discussion in Gliick, vol. 15. pp. 262 sqq.

127Schulz, CRL, p. 556. He refers to Pro Roscio Amerino oratio, XXXVIII —111 sqq., on which, see Watson, Mandate, pp. 199 sqq.

128For the situation in modern South African law, cf. e.g. De Wet en Yeats, p. 341.

129 But see art. 1992 II code civil (usually, however, ignored in the practice of the courts). - Culpa levis or culpa levissima? A much-disputed question amongst the authors of the

ius commune. During usus modernus and pandectism, the latter of these standards was usually advocated. For details, see Hoffmann, Fahrlassiykeit, pp. 44, 62, 95 sqq., 141 sqq., 212 sq.

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out: "Spondet diligentiam et industriam negotio gerendo parem";131 or, in the words of Donellus:

"Quippe negotium aliquod gercndum suscipimus, quia gcri quidquam sine industria et facultatc gercndi non potcst: ideo et hac ipsa industria ac facilitate et profiteri et sponderc intellegitur."132

6.The liability of the mandator

(a)Utility considerations

The fact that mandatum was gratuitous and that the mandatary usually acted in the interest of the mandator may also be expected to have played a role as far as the determination of liability in the reverse direction was concerned: could the mandatarius sue the mandator for any loss — not attributable to the fault of either of the parties—that he had suffered as a result of carrying out the mandate? Yes, is the answer given by Iulianus.133 If A, at the request of B, purchases a slave, and this slave, before he can be transferred to B, steals some of A's property, A can recover his full damages from В under the actio mandati (contraria) ("damnum praestari debere"). Reason: ". . . multo tamen aequius esse nemini officium suum, quod eius, cum quo contraxerit, non etiam sui commodi causa susceperit, damnosum esse."134 This is based on the well-known utility principle: the law should not allow a person to lose out on account of an obligation that he undertook in somebody else's interest. The loss must be shifted to where the benefit lies.135

(b) Casus a nullo praestantur

But the utility principle is not a hard-and-fast rule of law. It is based on considerations of equity. Furthermore, in the case of mandatum it is not always a realistic guideline for allocating risks and determining standards of liability: the mandatarius, as we have seen, did not necessarily act (solely) in the mandator's interest, and he might well receive a remuneration for his services. It is not surprising, therefore, that the question was controversial amongst the Roman jurists, and that in some of our texts we find a different assessment of the equities of the situation.

131Pothier, Traite du contrat de mandat. n. 46.

132Commentarii de Jure Civili, Lib. XIII, Cap. XI, XI; cf. further e.g. Windscheid/Kipp,

§410, n. 4; Hoffmann, Fahrlassigkeit, p. 141.

133As reported by Africanus in D. 47, 2, 62. 5.

134The last part of Afr. D. 47, 2, 62, 5 is interpolated; here the compilers attempted to reconcile the decision with the fault principle by means of a fiction. Cf. e.g. Dietrich Norr,

"Die Entwicklung des Utilitatsgedankens im romischem Haftungsrecht", (1956) 73 ZSS 95. 135 Cf. also Groti us, De jure belli ac pads. Li b. II, Cap. XII, § XIII: "ne quis . . . ex

beneficio damnum sentiat."

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