Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ I. On the One Commanding
- One commanding or mandating is said to be he who induces another to act, so that he may inflict damage on another in his name.
The one commanding is held to repair every damage commanded and inflicted by force of the mandate; but otherwise if he only approves damage done in his own name 1. The reason is that in the former case, but not in the latter, he efficaciously influences the damage. But for this it is required that he acted as a true master, or that through force, fear, or authority, he morally compelled the mandatary 2.
1 Mere approval of the deed pertains nothing to the account of mandate, and accordingly he who merely approves what has already been done neither ought nor can be called one mandating.
2 The Author seems to have taken mandate for a certain moral compulsion or necessity of acting imposed on another. But this is far distant from the notion of mandate, which by jurists and theologians is commonly defined as a contract of good faith, consisting in consent, by which a business is committed gratis to another who undertakes it. Therefore nothing pertains here to whether the one mandating is the Superior of the mandatary, or by any other title has authority over the mandatary as over a subject. But in the definition the word gratis is added, which indeed does not reject an honorarium or salary, but only a wage strictly taken, which would transfer mandate into a contract of hiring; although in delicts mandate is commonly taken more broadly, so that it embraces even hiring, for example, of an assassin for killing a third party.
- Questions. - Q. 1. Whether one mandating is held to restitution if he revoked the mandate before the damage was inflicted?
Resp. Negatively, if the revocation becomes known to the mandatary before the execution of the mandate; but otherwise if it becomes known not at all or too late, because in the former case he does not influence the damage, but certainly does in the latter. - Thus Vogler with several others.
Q. 2. Whether the one mandating is held concerning the damages which occur to the mandatary in the execution of the mandate?
Resp. Lacroix affirms with others, because the one mandating, by ordering the damage, is judged to undertake in himself the obligation of keeping the mandatary unharmed. But this seems to have to be restricted to the case in which the one mandating compelled another by force or fear. For otherwise the mandatary seems spontaneously to have undertaken in himself the whole burden and its consequences; and unless a pact concerning indemnity preceded, the one mandating will be held only from a certain equity.
Q. 3. Whether the one mandating is held to repair damage which the executor from invincible error brought upon another?
Resp. Negatively. Because the true cause of the damage is the error of the mandatary 3. - Thus Vogler, n. 279, and others commonly.
3 Nevertheless one must except if perchance it was too difficult to avoid the error. For although all agree that the one mandating is not held concerning damages which the mandatary inflicted beyond the mandate, yet they limit this if it was within the power of the mandatary to keep the limits of the mandate. Therefore also in the case in which it was not morally possible to avoid the error, the error must be imputed to the one mandating. By mandating something illicit, says Perez in Lib. 4, C. Tit. 35, n. 7, someone seems to have mandated all things which could probably accompany it. Hence in C. fin. de Homic. in 6, he who mandated a beating is pronounced irregular if the mandatary, exceeding the limits of the mandate, mutilates or kills.
Q. 4. Whether a Superior, holding damage ratified, is to be compared with one mandating?
Resp. Negatively, if the ratification follows the execution of the damage, because then it cannot influence the damage. But otherwise if it precedes the damage, or regards the proposal of inflicting damage, and truly influences it. - Vogler, etc.
- Resolutions. - 1. The one mandating is held to nothing if he revoked the mandate in time, although the mandatary, in order to receive the promised payment, pretended that he had not received the revocation before the damage was inflicted.
- If it is established that the revocation of the mandate was not heard or understood by the mandatary on account of deafness or distraction, the one mandating is held to restitution, because the effect follows by force of the prior mandate. The same reason has force if the one mandating sends letters revoking the mandate, and these are intercepted by some chance. - Lugo. - Vogler, n. 273, 277.
- He who induces another by prayers only to inflict damage on the neighbor, for his own, that is, the inducer's, utility, is compared with one mandating, although he does not command the damage by authority 4, because he is principally acting in the moral order. For the executor is not judged to act except in his place, and accordingly the one inducing to damage is judged to assume in himself every burden of reparation. - See Casus, n. 657.
4 We have already adverted that the authority of the one mandating pertains nothing to the account of mandate; for mandate means a contract by which someone freely assumes the burden of managing another's business, not the office of a subject who obeys a superior or master.
But he who induces another by prayers ought to be counted among counselors rather than among those mandating; and he who yields to prayers acts in his own name, not in the name of the one asking, although for this latter's utility. Therefore among cooperators he will occupy not the primary but the secondary place in order to the burden of restoring.