XI. On Mandate and on Quasi-contract

What is mandate, and what is its nature? - Mandate, insofar as it is a contract, can be defined: a contract by which one of the contracting parties commits to the other the management of some business to be performed in his name. The management of business; otherwise, not mandate, but hire of work is had. In his name; for, if not in his name, then the other executes his command, as a servant does when sweeping the house. Hence mandatories are agents, commonly agenti, fattori; brokers, commonly sensali; procurators for conducting lawsuits. Inst. 1. 3. t. 27 de Mandato § 1 ff.; C. I. 1737; C. G. 1984; C. H. 1709; C. L. 1318; C. A. 1004.

According to Roman and German Law, mandate is a contract per se gratuitous. L. 1 § 4 Dig. Mandati; Inst. l.c. § 13; C. B. 662. According to C. I. 1739; C. G. 1986; C. H. 1711, mandate is gratuitous unless it has been agreed otherwise. Per se gratuitous: otherwise it is rather hire of work, although it will always remain true that the lessor does not act as a mandatory in the name of another. - Mandate can be express and tacit; acceptance likewise can be express and tacit. The mandate is tacit if someone sees something being done for his own favor and does not prohibit it.

Acceptance is tacit if the mandatory executes the thing. L. 6 § 2 Dig. Mandati; C. I. 1738; C. G. 1985; C. H. 1701. - If the Mandate is against good morals, it is null. Hence there is no civil action of the mandatory against the mandator. Inst. l.c. § 7. Nevertheless, if the mandatory has really suffered loss by fault of the mandator, a natural action against the mandator is not denied to him. L. 825 par. Quid.; C. L. 1319 ff. Assignment is reduced to mandate, by which someone remits to another a title by which he mandates a third party to credit money or another thing to him. C. B. 783 ff.; C. A. 1403 ff.

Who can be mandator and mandatory? In order that mandate can be contracted, it is required that the mandator be per se capable of doing those things which he mandates another to do; and that the mandatory be capable by natural law of contracting obligation, although he is incapable by positive law. The reason is that the mandatory acts not in his own name, but in the name of the mandator. But in managing business, according to C. I. 1743; C. G. 1990; C. H. 1716, an emancipated minor can undertake the office of mandatory, but the mandator does not have an action against him except according to the general prescriptions of the obligations and contracts of minors. A wife cannot undertake a mandate without the authority of her husband. C. L. 1332 ff.

What are the obligations of the mandatory? 1. It is free to anyone not to undertake a mandate; but once undertaken, it must be completed, or renounced as soon as possible. But in managing the business the mandatory must not exceed the limits of the mandate; otherwise he no longer acts in the name of the mandator, but in his own. Inst. l.c. §§ 8, 11; C. I. 1742, 1751; C. G. 1989, 1997; C. H. 1714, 1715, 1718; C. A. 1007; C. B. 663, 665; C. L. 1335. 2. The mandatory is bound to use due diligence in managing the matter, and to render an account of his execution, and also to return to the mandator all that which he received by force of the mandate, although it was not owed to the mandator. And thus, if he received the mandate of giving money by loan without legal interest, and gave it with this interest, he will restore this also to the mandator. C. I. 1747; C. G. 1993; C. H. 1719, 1720; C. B. 666, 667. By force of the mandate; not if beyond the mandate he himself furnished something else.

C. L. 1336 ff. 3. Moreover he owes interest on the money which he applied to his own use from the day of such use. Likewise he owes interest on money of which he is debtor, from the day on which he is constituted in delay. C. I. 1750; C. G. 1996; C. H. 1724; C. B. 668. 4. The mandatory is liable only for grave fault if the mandate is gratuitous, Laymann 1. 3. tr. 4. c. 26. n. 1; but if it is not gratuitous, the matter will be just as in this hire of work. Inst. l.c. § 13. According to C. I. 1745, 1746; C. G. 1991, 1992; C. H. 1726, the mandatory is liable for losses arising from a mandate not fulfilled. Moreover he is liable not only for fraud, but also for fault committed in execution of the mandate. As regards fault, he is liable with less rigor when the mandate is gratuitous than when he has received a stipend for it. C. B. 164 ff., 181, 664; C. L. 1336 ff.; L. 23 de Divers. Reg. Iur. ant. ff.

What are the obligations of the mandator? 1. The mandator is bound to ratify what was done in his name within the limits of the mandate, and to execute the obligations contracted by the mandatory. C. I. 1752; C. G. 1998; C. H. 1727; C. L. 1350 ff. 2. He must preserve the mandatory indemnified, and accordingly must compensate the expenses made, even if the matter has succeeded badly and he himself would have spent less. He must likewise furnish interest on the sums which the mandatory expended, from the day on which he expended them. He must also compensate losses which happened to the mandatory by cause and occasion of the mandate, which otherwise he would not have suffered. Whether the mandator is also liable for the fortuitous loss of the mandatory? If the mandate was for an agreed price, he is not liable; if gratuitous, it is disputed. C. I. 1753 ff.; C. G. 1999 ff.; C. H. 1723-1730; C. B. 669, 670; C. L. 1344 ff.

When does mandate cease? 1. When the matter is still intact, mandate ceases by revocation of the mandator, renunciation of the mandatory, death, interdiction, or cession of goods of either party. Inst. l.c. §§ 9, 10, 11; C. I. 1757; C. G. 2003; C. H. 1732; and according to C. I. l.c., from the renounced incapacity either of the mandatory or of the mandator as regards only those things which they cannot undertake in their own name without a curator. Exception: if the mandate was to hand over a dowry to a girl, and the mandator dies, it must be handed over even after his death, and this in favor of the dowry; if the mandate is for pious causes, which do not depend upon the civil power, Laymann 1. 3. tr. 4. c. 26. n. 6; if the mandate is about some matter which is to be effected only after the death of the mandator. 2.

If the matter has already been begun, and it is in the interest of the mandatory or the mandator that it be completed, the mandator cannot revoke the mandate, nor the mandatory renounce the mandate, unless compensation is made for that which concerns the interest of the mandator or mandatory. Hence the right or obligation of the other passes to the heirs. C. I. 1758, 1761, 1763; C. G. 2004, 2007, 2010; C. H. 1718, 1736, 1737; C. B. 671 ff. 3.

If the mandatory, ignorant of the death of the mandator or of another cause of the cessation of the mandate, executed the mandate in good faith, the deed is approved, and an action is given to him against the heirs of the mandator. Inst. l.c. § 10; C. I. 1762; C. G. 2008, 2009; C. A. 1026; C. H. 1738. But if the mandatory dies, his heirs must warn the mandator, and meanwhile, as the circumstances require, they must provide for the utility of the mandator. C. I. 1763; C. G. 2010; C. H. 1739; C. 33 de Rescript.; Clem. un. de Renunt.

What is ratihabition? Ratihabition is compared in law to mandate; by it the act of another, done in one's own name, is held ratified. In one's own name; otherwise it can be an approval of the work, not ratihabition. R. 9, 10 de R. I. in 6; Lugo d. 3. n. 146; d. 19. n. 34; C. B. 177 ff.

What is management of affairs? Management of affairs is a quasi-contract by which someone usefully undertakes the affairs of an absent and ignorant person to be managed for him. Inst. 1. 3. t. 28 de Obligat. quae quasi ex contr. nascuntur § 1. Quasi-contract. For although quasi-contract is often confused with an implicit or virtual contract, cf. 932, nevertheless it is distinguished from this. For by quasi-contract is understood a merely honest deed, from which, apart from an agreement, even implicit or tacit, with another who is entirely ignorant of the matter, an obligation arises. In Roman Law multiple quasi-contracts are listed: management of affairs, administration of a common thing or of a common inheritance, entry upon an inheritance, guardianship, payment of what is not owed.

Inst. l.c. More recent Laws list only two quasi-contracts: management of affairs and payment of what is not owed. For administration of a common thing, or of a common inheritance, the undertaking of guardianship, and entry upon an inheritance can easily be reduced to management of affairs. C. H. 1887; C. I. 1140; C. G. 1371. Of an absent and ignorant person. Otherwise, if the owner is present and knows the matter, although he is silent, not management of affairs but mandate is had. - He usefully undertakes the affairs to be managed for him. For not for the sake of his own profit, but for the utility of the owner, in his name, he undertakes the management of his business. Hence if someone redeemed another's thing from a thief for the owner, he demands the price of the same thing from the owner, if indeed he redeemed it for the owner, not if he bought it for himself.

What are the obligations and rights of the manager and of the owner of the managed matter? - According to Roman Law: 1. If the goods of another were abandoned, and someone spontaneously undertakes to administer them, he furnishes against fraud and grave fault, which is equated with fraud. L. Ait Praetor § 9 Dig. h.t. Moreover the manager is liable not only for fraud, but also for fault, even slight fault, indeed very slight fault, in the hypothesis that there was another who would have administered the business more diligently. Inst. l.c. 2. To the manager of affairs an action belongs against the owner, namely so that whatever he has expended from his own may be furnished to him, and so that he may be compensated for losses, if he managed the business prudently, even without a happy outcome. L. 10 Sed an § 1 Dig. de Neg. gest.; Inst. l.c. An action is likewise granted to the owner against the manager, so that he may render an account of what was managed and of the utility neglected. Inst. l.c. Therefore whatever the manager of affairs gains or expends, he gains and expends in the name of the owner.

According to C. I. 1143; C. G. 1374; C. H. 1889-1891, one who spontaneously manages another's affairs is bound: 1. In his administration to take care as a good paterfamilias. Nevertheless the judge can moderate the damages which have arisen from the fault or negligence of the administrator, all circumstances of the matter being considered. Gousset 920. 2. He who spontaneously undertakes to manage another's business must pursue the management and bring it to completion, until he whose interest is concerned can by himself look after the business; and if he whose interest is concerned dies, he must pursue the management until the heir can take up its administration. C. I. 1141, 1142; C. G. 1372, 1373; C. H. 1888. 3. The manager must suffer those things which follow from the business itself, and be subject to those obligations which would exist if he had undertaken the matter to be managed by mandate. But the owner, if the business has been rightly managed, must satisfy the obligations which the manager contracted in his name, preserve the manager immune from those which he contracted personally, and compensate all expenses made, both necessary and useful, together with their fruits, to be computed from the day on which they were made. C. I. 1141, 1144; C. G. 1372, 1375; C. H. 1893 ff.; C. A. 1037; C. B. 177 ff., 677 ff.

What are the obligations and rights from guardianship? "Guardians also, who are held by the judgment of guardianship, are not understood to be obligated properly from contract. For no business is contracted between guardian and ward. But, since they are certainly not held from wrongdoing, they seem to be held as though from contract. But in this case the actions are mutual. For not only does the ward have the action of guardianship against the guardian, but on the contrary the guardian has the contrary action of guardianship against the ward, if he has either expended something on the matter of the ward, or has been obligated for him, or has obligated his own thing to his creditors." Inst. l.c. § 2. The action of guardianship, namely so that he may render an account of his administration, both of what was done and of what was not done. L. 917. Cf. here 684 ff.

What are the obligations and rights from communion of a thing? - "Likewise, if among some persons a thing is common without partnership, as if it had equally been bequeathed or donated to them, and one of them is therefore held to the other by the judgment for dividing common property because he alone received fruits from that thing, or because his partner alone made necessary expenses on that thing: he is not understood to be obligated properly from contract, since they contracted nothing among themselves; but because he is not held from wrongdoing, he seems to be held as though from contract." Inst. l.c. § 3. Cf. 1241 ff.; C. He. 646-654.

What are the obligations and rights from communion of inheritance? - "The same right applies to him who is obligated to a coheir by the judgment for dividing the family property from these causes." Inst. l.c. § 4; C. B. 2032 ff., 2058 ff. To be obligated for the cause of dividing the family property is to be obligated to the division of the goods of the family. According to C. He. 602 ff., when the deceased leaves several heirs, a communion of rights and obligations arises among them, from the opened inheritance until its division; and they answer in solidum for the debts of succession, just as in common they are owners and dispose of the rights inhering in the succession, unless by law or contract the faculty of representation and administration is reserved to one of them. But any coheir can always seek division of the inheritance, unless by contract or law he is bound to remain in communion. Cf. here 1241 ff.

What are the obligations and rights from entry upon an inheritance? "The heir also, by the title of legacies, is not understood to be obligated properly from contract. For neither with the heir nor with the deceased can the legatee properly be said to have conducted any business; and nevertheless, because he is not obligated from wrongdoing, he is understood to owe as though from contract." Inst. l.c. § 5. By the very fact of entering upon an inheritance which contains legacies, the heir is held from the will of the deceased toward the legatees, and the legatees in turn are obligated toward the heir, so that they receive the legacy from no one other than the heir. Likewise he is held by the will of the deceased to execute his other commands. And, because the deceased and the heir are judged one and the same person, he is also bound to satisfy the hereditary creditors. - Cf. 1052.

What are the obligations and rights from payment of what is not owed? - "Likewise he to whom someone by error has paid what was not owed seems to owe as though from contract. For he is so little understood to be obligated properly from contract that, if we follow the more certain reasoning, he could be said to be obligated more from a dissolution of contract than from a contract. For he who gives money with the intention of paying seems to give it in this, that he may rather dissolve the business than contract it. But nevertheless he who accepted is obligated just as if a mutuum were given to him, and therefore he is held by condiction." Inst. l.c. § 6.

According to C. I. 1145-1150; C. G. 1376-1381; C. H. 1895 ff., he who either by error or knowingly receives that which is not owed to him is bound to restore it to him from whom he unduly received it. He who, when by error he thought himself a debtor, paid, has no right of reclaiming except against him only to whom he paid. Nevertheless this right ceases if the creditor, because of this payment, in good faith deprived himself of the title of the credit and of the securities pertaining to it; in which case recourse against the true debtor is free to him who paid. - He who received the payment in bad faith must restore both the capital and the fruits running from the day of payment. He who unduly received some thing must restore it in the individual, if it still exists.

But if it does not exist or has suffered detriment, he who accepted in bad faith must return its value, even if the thing has perished fortuitously or has been made worse; but he who accepted in good faith is not bound to restore except what has been turned to his own matter. - He who sold a thing accepted in good faith is bound only to restitution of the price, or to ceding the action for its recovery. He to whom the thing is restored must compensate the possessor, even one in bad faith, for expenses made which were necessary for preservation of the thing, and also useful ones. Gousset 921; C. A. 1431, 1436. According to C. B. 812 ff., what someone has unduly received he is bound to restore. Nevertheless reclaiming of what was paid is not admitted if he who paid knew that he was not obligated, or if the paid prestation corresponded to a moral obligation or propriety. But together with the thing must be restored everything which that thing produced and by which he became richer. Cf. 1341.

Note: The obligation of restoring from payment of what is not owed arises both from quasi-contract and from another's thing accepted. Cf. the exception of the Law in mutuum, n. 1107.