Article Second. On the One Commanding

480. Declarations. 1. The one commanding (ordering) is here understood as he who induces someone to inflict damage on another in his name.

a. It makes no difference whether the mandatary undertakes the business to be done gratuitously or for payment, provided he acts in the name of the one mandating. In the same way it makes no difference whether the one mandating is a superior of the mandatary, who by his authority enjoins on him the business to be done, or is equal to the mandatary: for to the nature of mandate only this belongs, that the mandatary act in the name of the one mandating.

b. The one mandating is the principal and primary cause of the damage; the mandatary or executor is its instrumental and secondary cause.

2. In order that a mandate induce the obligation of restitution, it must be the true cause of the damage inflicted; but it is the cause of the damage inflicted if it truly influences the will of the mandatary.

a. Therefore approval or ratification of the damaging action made after execution is not a mandate; but approval or ratification made before execution is equivalent to mandate if it influences the damage.

Therefore if someone manifests to you his plan of inflicting damage on another in your favor, and you do not contradict it, you are bound to repair it when you can contradict without difficulty, because by tacitly approving you are considered to have influenced the damage; but if someone, without your knowledge, inflicts damage on another in your favor, you are not bound to repair it.¹

b. A mandate can be given in diverse ways: alpha. by reason of the mandate, either by entering a contract, whether gratuitous or onerous, or without a contract: by command, prayers, approval; beta. by reason of the mode, expressly or tacitly, as if someone by some sign shows that it will be pleasing to him if damage is inflicted.

¹ Cf. Vogler, n. 283.

481. The obligations of the one mandating toward the damaged person are contained in this principle: the one mandating must repair all damages which the mandatary inflicted by force of the mandate; for of these he himself is the efficacious cause. By force of the mandate are considered to be inflicted not only those damages which are expressly contained in the mandate, but also those which in executing the mandate could be avoided only with difficulty.

1. Damages which the mandatary inflicted from invincible error, not likewise damages which he inflicted from vincible error (which he could morally have avoided), the one mandating is bound to repair, because the mandate efficaciously influences the former, but not the latter.

2. Damages which the mandatary inflicts by exceeding the limits of the mandate, the mandatary is bound to repair, because he alone is their cause. Nor, if the one mandating afterward ratifies them, does he therefore become their efficacious cause.

To what is the one mandating bound if he revoked the mandate?

a. If the revocation of the mandate became known to the mandatary before its execution and the mandatary nevertheless inflicts damage, he is bound to nothing: for through revocation the influence of the one mandating on the damage ceases.

b. If the revocation of the mandate from any inculpable cause did not become known to the mandatary, whether because the messenger could not reach him on account of the shortness of time, or because by chance he was not brought, he is bound to repair the damage: for in fact the mandate is the cause of the damage.

c. If the revocation of the mandate did not become known to the mandatary because a free cause culpably impeded this, the one impeding is bound to repair the damage: for he exists as its cause.

482. The obligations of the one mandating toward the mandatary are contained in this: the one mandating must repair the damages occurring to the mandatary in execution of the mandate, of which he himself is the efficacious and unjust cause.

1. If by force, fraud, or grave fear he drove the mandatary to executing the mandate, he is bound to repair all damages occurring to him in the execution which he foresaw in some way, at least confusedly: for of these he himself is the efficacious and unjust cause; unjust indeed, because by compelling the mandatary by force he inflicted an injury on him; efficacious, because damages foreseen in some way follow per se from the mandate. But he is not bound to repair damages which he could not foresee, because of these he is only the cause per accidens.

Hence if one ordered by grave threats to commit theft is condemned to prison, the one mandating is bound to repair the damage arising from this: for this effect, as one not improbably connected with the action, follows from the action per se. But if the one ordered to commit theft falls from a horse and breaks an arm, the one mandating is not bound to repair the damage arising from this: for this effect, as connected with the action only by a possible nexus, follows from the action per accidens.

2. If the mandatary spontaneously or hired for payment undertakes the mandate, the one mandating is not bound to repair the damages occurring to him in the execution, because he himself is their cause neither unjust nor efficacious: for no injury is inflicted by the one mandating on the mandatary who freely undertook the action; moreover he himself is the cause of all effects of his action, which he freely undertook.

Note. One ordering, insofar as he is distinguished from one mandating, differs from him in two ways: a. the one ordering is the superior of the mandatary and by his authority enjoins the action on him; b. the one ordering is bound to repair to the mandatary all damages which he suffered in execution of the mandate and which the one ordering probably could foresee.