1. Command, Mandate

101. Notions. Strictly speaking, command is not the same as mandate, because command supposes authority, which induces someone to act, while mandate from free agreement commits to another an action to be exercised.³⁷ A father commands his son to do something; but a friend mandates some work to a friend. Mandate or command can be done either expressly, as if a father says to his son: do this; or virtually, as if a master signifies to his subjects that it would be pleasing to him if they did such a theft, or if he complains that no one avenges an injury inflicted upon him. In this way the killing of St. Thomas of Canterbury was imputed to Henry II, king of England.

In the present matter we take command and mandate promiscuously. The mandator or commander is the principal cause; but the mandatary or executor is the secondary or instrumental cause. Therefore damages following from an unjust action are also imputed principally to the mandator or commander.

Principle. He who efficaciously and formally commands or mandates a work injuring commutative justice is bound to restitution toward the person damaged, and sometimes also toward the mandatary.

The truth of this principle is plain both from what was said above concerning unjust damaging and from proposition 39 condemned by Innocent XI: "He who moves or induces another to inflict grave damage upon a third party is not bound to restitution of that damage inflicted."³⁸

a) Obligations of the mandator toward the person damaged. The commander or mandator is bound to repair for the person damaged all damages which were caused by force of the mandate and were foreseen. The reason is that, according to the common adage, "what someone did through another, he himself is deemed to have done." But I have said that the commander or mandator is bound to repair damages foreseen and truly caused by force of the mandate. For if the mandatary exceeded the limits of the mandate, or if damages wholly unexpected occurred, then the commander or mandator is not obligated concerning those, since all those things are not voluntary to him and therefore are not to be imputed. Hence he who hired another to strike a third person is bound to repair the damage inflicted upon that third person. But if, beyond the mandate, that other not only struck the third person but killed him, the mandator is not bound to repair the damage arisen from the homicide.

When the mandator revokes his mandate and makes this known to the mandatary before execution of the mandate, then he is now held to nothing, even if the mandatary from his own malice inflicts damage; but if the revocation either did not become known to the mandatary or was made after execution of the mandate, the obligation of the mandator remains unchanged. But if a third person knowingly impeded this notification of the revoked mandate, that person and not the mandator is bound to restitution.

b) Obligations of the mandator toward the mandatary or executor. The mandator ought also to repair for the mandatary damages perhaps had in the execution of the mandate, if by force, fraud, or even abuse of his authority he coerced the mandatary, and foresaw this damage at least confusedly. Otherwise, however, he is held to nothing. The reason is that in the first case the mandator formally and efficaciously damaged the mandatary; but in the second case the mandatary acted as if of his own accord and therefore ought to bear the consequences of his action. Hence a master who by grave and unjust fear induced a maidservant to pronounce a damaging perjury is bound to repair all damages which the maidservant will suffer from the perjury committed. But if the maidservant indeed perjured herself at the mandate of the master, but wholly freely, she herself and not the master is bound to bear the probably foreseen consequences of the perjury. Nevertheless, even in this case it is very fitting that the mandator take upon himself at least part of the damage.

Note. Ratification, taken in the strict sense for approval of an unjust action already done by another, is not equivalent to mandate or command; wherefore if someone ratifies damage which another perpetrated for his favor, but without his mandate, he indeed sins, but is not bound to restitution, because he is not the efficacious cause of the damage. Rule 10 of law in the Sixth: "There is no doubt that ratification is drawn back and compared to mandate," does not hold in this matter, but only in contracts and in certain canonical penalties.

³⁷ In the German language iussio is Befehl; mandate, however, Auftrag.

³⁸ Denz. n. 1189.