Mandate and the Management of Affairs

571. Notion. Mandate (Vollmachtsvertrag) is a contract by which one person undertakes to manage an affair in the name of another.

a. He who commits the affair to be managed is called the mandator, but he to whom the affair is committed is called the mandatary.

b. Because the mandatary acts in the name of the mandator, the latter is held concerning all things which the mandatary does by force of the mandate, without exceeding the limits of the mandate.

c. Mandate can be a gratuitous or onerous contract, according as the mandatary undertakes the affair to be managed gratuitously or for payment. Yet there are those who say that mandate is a contract gratuitous by nature: for if a price is accepted for managing the affair, there is rather a lease of work. Nevertheless an essential difference exists between onerous mandate and lease of work: for the mandatary acts in the name of the mandator; but the worker acts not in the name of the master, but in his own name.

572. Obligations of the mandatary. a. He must manage the affair committed to him diligently and faithfully, namely with that diligence which he is accustomed to employ in his own affair of the same kind; yet he must employ greater diligence if he accepts payment than if he manages the matter gratuitously.

b. He is bound to observe the limits of the mandate; but for managing the affair rightly he can employ all means which the nature of the affair requires. If he exceeds the limits of the mandate, both damage and profit pertain to the mandatary.

c. He must hand over to the mandator every profit which he receives: for since he acts in the name of the mandator, whatever he acquires, he acquires for him, unless he has acquired something by extraordinary industry, or a special agreement has been entered between them.

d. He is bound to repair damages which come to the mandator because of culpable negligence in managing the affair, and indeed before the sentence of the judge if he admitted grave theological fault, otherwise after the sentence of the judge.

573. Obligations of the mandator. a. He must fulfill all obligations contracted by the mandatary in the execution of the affair, provided the mandatary has not transgressed the limits of the mandate.

If the mandator revoked the mandate, but the revocation was not known to the mandatary, the mandator nevertheless is held concerning obligations contracted by him, except in the case in which the mandate had been committed for contracting espousals or for entering marriage: for these contracts are invalid when the mandate has been revoked, even if the revocation was unknown both to the mandatary and to the other party.

b. He must pay the necessary and useful expenses which the mandatary made in executing the affair, even if the affair did not have the desired outcome, provided this happened without the fault of the mandatary.

c. He must compensate damages which the mandatary suffered without fault, but not damages which came to the mandatary from a fortuitous event.

574. Management of affairs (Geschaftsfuhrung ohne Auftrag - Vertretung ohne Vollmacht) is a quasi-contract by which someone undertakes to manage another's affair from the presumed will of the absent and ignorant owner.

a. Management of affairs is called a quasi-contract in a juridical sense (514, 2, c), by which namely, without any consent, not even implicit or virtual, an obligation arises in each contracting party, because the common good requires this. Hence if someone buys a thing, for example, a precious ring, from a thief for the owner, the latter must compensate the price paid, both by natural and positive right. Or if someone undertakes the care of feeding a wandering animal and bringing it back to the owner, he can require compensation for labor and expenses.

b. Management of affairs is a contract plainly akin to mandate, so that it can be called a presumed mandate: therefore the things which have been said concerning the obligations of the mandatary and mandator must be applied to the manager of affairs and to him whose affair is being managed.

BAILMENT is a contract by which the possession of chattels is delivered by one person (the bailor) to another person (the bailee) either to be delivered by the bailee to a third person or to be redelivered to the bailor when the purpose of the bailment is at an end.

According to the common enumeration there are six kinds of bailment—depositum, commodatum, locatio et conductio, vadium, locatio operis faciendi, and mandatum. Of these depositum and mandatum are for the benefit of the bailor alone, and the bailee is liable only for gross negligence in the performance of his duty. Commodatum is for the sole benefit of the bailee, who is therefore liable for even slight negligence. The other kinds are for the benefit of both bailor and bailee, and the bailee will be liable for ordinary neglect. The foregoing degrees of negligence are required by law to make the bailee liable, but by express agreement he may bind himself to more or less care, and then he will be held liable accordingly. Moreover, when a bailee possesses any special skill, the omission to use that skill in the execution of the trust committed to him will be imputed as gross negligence even if he derived no benefit from the bailment.

A CONTRACT of agency arises where one person, called the principal, authorizes another, called the agent, who accepts the charge, to represent him, or act on his behalf, and undertakes to be answerable for what that other does within the scope of his authority.

This contract, like others, requires the mutual consent of the parties to it, and that consent may be express or implied in their actions and course of dealing. Thus not only is a wife the agent of her husband for the purpose of supplying herself with necessaries, but a woman with whom a man cohabits occupies the same position as long as the cohabitation continues, Indeed, agency may be constituted by ratification of acts done on behalf of another even without previous authorization. No special formality is required in appointing an agent except in the case of a corporation, or where the agent is authorized to execute a deed on behalf of the principal, in which case the appointment must be by deed.

Whatever a person may do by himself he may appoint an agent to do for him, qui facit per alium facit per se; and anyone of sound mind may be appointed an agent, even one who, like a minor, cannot enter into legally binding contracts for himself, An agent cannot delegate his authority to another, for delegatus non potest subdelegare. Agency is of different kinds, universal, general, or special. A universal agent is empowered to do any acts on behalf of his principal; a general agent is empowered to do all acts in some particular trade, business, or employment; a special agent is authorized to do some particular act for the principal; a del credere agent engages to be responsible to his principal for the purchase money of goods sold by him.

The rights and duties of principal and agent between themselves are settled by their intention as manifested or implied in the contract which they have concluded. In default of express or implied agreements to the contrary the duties of the agent implied by law are: to perform the contract of agency; to observe the limits of his authority and the instructions given him by the principal, as also the customs and usages of the business in which he is employed; in all things left to his discretion to act with the most perfect good faith in the interest and for the benefit of his principal; to exercise due skill, care, and diligence, according to the nature of the business entrusted to him and the terms of the agency; to keep the money and property of his principal separate from his own; to pay over to the principal all moneys received to his use, and to account to him for all secret profits and commissions. No agent is allowed to enter into any transactions in which he has a personal interest at variance with his duty to his principal or from which he obtains any personal benefit or profit, except with the consent of the principal; and any secret commissions or profits which he acquires are considered as received for the principal’s use. This rule of law is just, and it should be adhered to when the agent obtains a fair and equitable remuneration for his services from the principal. It is obvious that the agent may keep secret commissions which he receives from others with the express or implied consent of his principal, and he may be excused in conscience if he retains for his own use the fruits of special and extraordinary diligence which he was not bound by his contract to employ, together with gifts and presents made to him personally to secure or retain his custom, provided that the interests of his principal in nowise suffer in consequence.

The principal on his part is bound to pay a fair remuneration to the agent for his services, to accept the obligations lawfully entered into by the agent in his behalf, and to indemnify him for all expenses and losses that he has incurred in the course of his agency.

Even if a universal or general agent exceeds his authority in a particular instance, yet the principal will be liable if the act came within the agent’s ordinary authority. This is not the case with a special agent, for in this case it is the duty of those who contract with him to satisfy themselves as to the extent of his powers.

As a general rule, the agent incurs no personal liability, for he acts on behalf of his principal, who alone is bound. Contrary to the general rule, the agent will be liable when he conceals his principal, or when he acts without authority, or when he exceeds that authority and fraudulently misrepresents its extent, or when he specially binds himself, though acting as an agent: When the fact of agency is not known, or when the agency is known but the principal is not disclosed, the principal, on being discovered, is held liable as well as the agent. In law, but not in conscience, the principal is liable for the fraud and wrong committed by the agent within the limits of his authority even without the sanction of the principal.

A contract of agency is determined by the death of the principal, by the revocation by the principal of the agent’s authority, by the agent’s renunciation of office with the principal’s consent, by the principal’s bankruptcy, by the effluxion of time, and by the fulfilment of the object for which the agency was created.

Without leave of their own Ordinary they should not undertake the agency for property belonging to laymen, nor secular offices which entail the duty of rendering accounts; they should not exercise the office of procurator or advocate except in the ecclesiastical court, or when a cause of their own or of their church is being tried in the civil court; they should take no part, not even as witnesses, without necessity in a lay criminal trial.

Clerics are forbidden to go surety even with their own property without consulting the local Ordinary.

I. Notion of mandate. Mandate is a contract by which someone entrusts to another some affair to be managed in his, that is, the mandator's, name, and the other, the mandatary, undertakes to manage it in that way. A general and a special mandate are distinguished, according as the mandator commits all affairs or only one affair or several affairs to the mandatary.

II. Form of mandate. With attention paid to natural law, it can be entered into both orally and in writing; but civil law should be inspected.

III. Obligations of the mandator. The mandator is bound: 1° to fulfill the obligations which the mandatary undertook within the limits of the mandate; those which he undertook by exceeding the limits of the mandate do not bind the mandator, unless he has expressly or tacitly ratified them; 2° to compensate the mandatary for the expenses to be made by him, and likewise the damages which he has suffered inculpably in executing the mandate; 3° to pay the agreed wage.

IV. Obligations of the mandatary. The mandatary is bound: 1° to execute the mandates diligently; 2° to keep himself within the limits of the mandate; otherwise he acts in his own name, and therefore does not oblige the mandator toward the third party. To what extent he can retain the excess of price, if he sells above the price assigned by the mandator or buys below it, see n. 902.

V. Cessation of mandate. Mandate ceases: 1° by legitimate revocation of the mandator, intimated to the mandatary; 2° by legitimate renunciation of the mandatary, intimated to the mandator; 3° by the affair for which the contract was entered into having been finished; 4° by the death of the mandator or of the mandatary. Some indeed teach, or hold as probable, that a mandate of donating does not expire by the death of the donor, so that the mandatary can execute the mandate of donating even after the death of the donor; but it is not clear by what reason a donation of some thing could be made in the name of a person already deprived by death of every right to the thing to be donated.

VI. Management of affairs is had when someone without mandate of the owner undertakes to manage another's affair.

Question 1. Does the manager of affairs have a right to a wage?

Response. It must be denied if he had the intention of rendering the service gratuitously. Otherwise it is disputed. Some deny it, because that right cannot arise except from a contract with the owner. But with St. Alphonsus (III, 825, at the end) and others, it seems that it must be affirmed in the case in which the owner wanted, for example, to buy something. The reason is that one who wishes, for example, to buy something also wills the normal conditions necessary for the purchase. But a normal condition is that he wishes the thing to be bought by another if he himself cannot buy it. This being posited, there is a contract, implicit on the part of the owner, between the owner and the manager of the affair, who buys the thing and receives a right to a wage.

Question 2. Is the owner bound to ratify the things which the manager of affairs prudently managed?

Response. It must be affirmed insofar as, according to the things just explained, a contract had place between him and the manager of affairs.

Note. What civil law establishes regarding the management of affairs, see in the code of one's country.

Forms of Contract.—The chief forms of contract are the following:

(a) gratuitous contracts, which are those that confer advantage on only one of the contractants, or those in which no payment or compensation for his acts or goods is made to one party by the other party. They include unilateral contracts, which produce obligation on one side only (e.g., a promise, gift, testament), and bilateral contracts, which produce obligation on both sides. The bilateral contracts are also known as bailments, or understandings whereby a thing or business is transferred from one person to another in trust, on condition that a return will be made to the owner, They include the following contracts: loans, in which return must be made of the identical things borrowed (commodatum), or of a thing similar in kind (mutuum); deposit, in which a thing must be returned after safekeeping (depositum); an agency, in which one conducts the business of another with the obligation of making returns, either from express contract (mandatum) or from imputed agreement (negotiorum gestio). In commodatum and mutuum the advantage is had by the bailee, in the other three by the bailor;

(b) onerous contracts of certain event, which are those that confer an advantage on both parties, and in which the thing agreed on is certain and definite. They include contracts in which one party transfers ownership to the other (e.g., buying and selling, barter, loan at interest, contracts for annuities, stocks and bonds) or useful dominion (e.g., lease of property, contractor’s agreement, hire of labor), and contracts in which both parties transfer rights to a moral person of which they are the members (partnership);

(c) onerous contracts of uncertain event, which are those that confer advantage on both parties, but in which the thing agreed on is contingent and uncertain. Examples are insurance, wager, gaming contracts, lottery, and stock market speculation;

(d) subsidiary contracts, which are those that are made in order to give security to principal contracts to which they are annexed or for whose sake they are made. Such are guaranty and surety, pledge and pawn, and mortgage.

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.

Whether restitution is owed from unjust cooperation, and how many kinds are there? - Restitution must be made from unjust cooperation. For there is not always only one cause of damage given, and a cooperator in unjust damage to a neighbor is truly its cause. Hence all those who in any way are an influencing and efficacious cause of the damage that followed are held to restitution; and those who, obliged by office and obligation of justice to guard against damage, did not guard against it. But cooperation in damage to neighbor can be done in nine ways, of which the first six are positive, the later three negative. All are contained in the following verses: Command, counsel, consent, flatterer, recourse, participant, silent, not preventing, not revealing. St. Thomas, 2. 2, q. 62, a. 7; C. B. 830.

What order is to be observed as regards cooperators obliged in solidum? - If cooperators concur by a diverse species or grade of cooperation, then in the first place the principal causes of the damage are held; so that there is held: 1. The possessor of the thing, in individual form or in its equivalent, indeed even if he unjustly destroyed the thing without becoming richer from it. 2. The one commanding; yet if the one commanding was the principal cause both of the taking away of the thing and of its destruction, or only of its destruction, then he is held in the first place, as the principal damager. 3. The executor, namely the mere executor of the damage inflicted, as an instrumental cause.

But in the second place secondary causes are held; so that there are held 1. the remaining positive cooperators; 2. negative cooperators. The reason is that each one is held to restitution according as he influences the damage of another. Positive, secondary causes, such as one counseling, consenting, praising, participating, since some are not subordinated to others, are held equally, in the same place, yet more or less according to greater or lesser influence, if there is question of restitution for a proportional part. Among negative causes those are held first which influenced the damage more immediately and more. And so the guard is held first concerning the fire of a forest, then the steward. L. 560, 580.; St. Thomas, 2. 2, q. 62, a. 7.; C. A. 1301, 1302, 1304, 1312.

1. Fuscianus lent to Rutilius tapestries, or textile pictures, for adorning the rooms of the house, silver candlesticks, golden vessels, and other precious furnishings, on the occasion of a wedding banquet and feast. When it had ended, at night, from a cause altogether unknown, the whole house is burned, and all things perish. Scarcely did Rutilius and some of his family have time to save their own life.

Q. Is Rutilius held for the damage of the things lent to him?

R. Negatively. For, on the one hand, a thing perishes for its owner; but on the other hand, since the cause of the fire is altogether unknown, it can in no way be established whether there was theological fault, or even juridical fault; and therefore he cannot be held for the damage. The same would have to be said if the things lent had been taken away by theft, no fault of Fuscianus intervening [printed thus; the sense requires Rutilius].

But what if there were doubt concerning negligence? Neither in this case of doubt could Rutilius be obligated to compensate the damages, because then the obligation, if there is one, is doubtful and consequently also uncertain. But one cannot be obligated to certain compensation of damages on account of a mere doubt about damage having been brought about.

But what if there had indeed been negligence, but not theologically culpable, as it is not rare to happen in fires of this sort? It seems then that Rutilius is held to the compensation of damages in the case. Thus indeed from civil law and in the external forum; and the same seems to have to be said in the internal forum, on account at least of an implicit contract concerning diligence to be applied, indeed also concerning not ordinary and common diligence only to be applied; since the question is of a loan for use in favor of the borrower only, and of very precious things, and in notable quantity. But when the sentence of the judge has intervened, there is no doubt that Rutilius, in this same hypothesis, is held to compensate the damages. - I. M. 1070 seqq.; G. 869 seqq., 877.

2. Pibertus, a merchant, under an express promise of secrecy accepted, manifested to his friend Gedonius the intention which he himself had of declaring a cession of goods to his creditors. Wishing, however, to withdraw 500,000 lire, he asked the same Gedonius that he secretly keep with himself that sum of money deposited with him, and restore it to him after a composition had been made with the creditors. Then he added that the aforesaid money was partly silver and gold coins, partly titles of the public Debt, among which, he says, there are 100,000 lire in Russian titles, which I most recently received from the Russian gentleman Photius Telletoff, well known to all in the whole city.

Q. What as to the case?

R. Gedonius could in no way accept the aforesaid secret. And although he has accepted it, he is in no way held to keep it. For the matter concerns an illicit thing, a thing gravely harmful to others, a detriment to be brought about by the very one committing the secret, a secret employed for accomplishing by deed the aforesaid damage. - I. M. 1542, 1543.

Moreover, Gedonius can in no way accept the aforesaid deposit. Otherwise he becomes an unjust and efficacious damager, by cooperating in the damage of the creditors, and he is held to restitution. But if he has already accepted the deposit, and the cession of goods has already been made, he cannot restore it to Pibertus, but it must be restored to the creditors of Pibertus; and therefore, that this restitution may be made rightly, creditors of this sort must be admonished, or rather the legitimate authority must be admonished, lest in this restitution, as can easily happen, some injure others. - But if, again, he has already accepted the deposit, but the cession of goods has not yet been made, he ought to admonish Pibertus concerning his injustice, that he abstain from it altogether. But if Pibertus is altogether determined to make the cession of goods, the creditors must be admonished, that they may beware for themselves, or better, at an opportune time, the legitimate authority must be forewarned; and the deposit received must be consigned either to the creditors, or certainly, practically speaking, to the legitimate authority, that it may be restored among the creditors. But if it is certainly established, as it seems, that those Russian titles were given individually by the Russian gentleman Telletoff, they must be restored to him. But due precautions must be employed in this restitution, if it is made without the intervention of legitimate authority, lest damages thence come upon Gedonius himself. I. M. 1075, 1076, 1423. - Gennari Consult., etc. p. 1, cons. 48.

3. Canutus, treasurer of a certain prince, with monies entrusted to himself, the owner not knowing, trades for his own advantage in the money market, and makes for himself a sufficiently notable profit. One day, when a small chest filled with the money of the lord had been handed to him, instead of immediately putting it back in the money chest which was kept in the same house of the prince, he carried it away to his own house, that he might be able to trade also with that, as he was accustomed to do. But after a few days, inspecting the small chest and counting the money, he noticed that one thousand lire had been withdrawn from it.

Q. What as to the case?

R. Canutus in the case does not seem able to be excused from sin, and from grave sin, on account of the use which he makes of the money of his lord. For the prince is certainly unwilling, and reasonably unwilling; and there is no doubt that, if the prince knew the infidelity of his treasurer, he would immediately expel him. Canutus, by trading with the money of his lord, certainly exposes it to great danger, since the aforesaid trading of money in the money market, or exchange, is in itself a very dangerous thing, as daily experience itself establishes.

Nevertheless, since the matter has hitherto succeeded well for Canutus, he can keep for himself the sufficiently notable profit which he has received from that trading, because they are the fruits of his industry. But it is supposed, as appears from the case, that that money was to be stored in the chest and to remain there idle, so that from that money, employed for trading, no ceasing profit of the prince follows.

But Canutus is held to restore the one thousand lire withdrawn from the small chest. For by carrying the money away into his own house, that he might be able to trade with that money, he took upon himself the risk of the same. - I. M. 1075 seqq.; G. 882-884; Ithur. cas. 2. n. 12, 13.

4. Durandus deposits with Martinus, a public money-changer, a sum of counted gold money, 50,000 lire. Durandus likewise deposits with the same Martinus 50,000 lire in 50 schedules of the public Debt. A writing is made by the money-changer of the deposit handed over, namely, of gold money of 50,000 lire and 50,000 lire of the public Debt, without the serial numbers of the aforesaid schedules being indicated. The deposit having thus been completed, after five months one of those schedules obtains a prize. But after a year had passed, Durandus demands back from Martinus the deposited money together with legal interest and the prize obtained. Martinus restores only 50,000 lire in gold money, and 50,000 lire in 50 schedules of the same public Debt.

Q. Did Martinus act justly?

R. Affirmatively. For first, the depositary is not held to pay any interest on deposited money, except from the day on which he is constituted in delay. Thus C. I. 1852. Wherefore it altogether suffices that Martinus restore the money received, in that species in which it was received, whether it has increased or decreased, nor does he owe any interest for it. Moreover, since the schedules of the public Debt were deposited only as to species, number, and value, and in the deposit no account was taken of the serial number of the same schedules, those schedules by that very fact passed into the ownership of the money-changer, so that, if they had been carried off by theft or burned by fire, he himself certainly would have had to substitute others for them. Therefore the prize of that schedule belongs not to Durandus, but to Martinus, to whom the schedule itself belongs. Scav. l. 2. num. 458.

5. Ludovicus receives from Aloisius a ring, with a precious gem, to be sold for 100 lire. He immediately finds Diogenes, who buys it for 130 lire. Rejoicing at such good fortune, Ludovicus hands 100 lire to Aloisius, but keeps 30 lire for himself.

Q. Did Ludovicus act rightly?

R. If Aloisius agreed with Ludovicus that he should sell the ring for 100 lire to be handed over to him, and that, if he should receive anything beyond that, he should keep it for himself, Ludovicus can indeed keep the 30 lire for himself. Apart from such an express or tacit agreement, Ludovicus must return the whole price to Aloisius. For then he cannot keep that excess for himself by reason of the thing sold, which belongs to Aloisius, and therefore its price also belongs to the same Aloisius. Nor can he keep the aforesaid excess by reason of the designation of the price made, because that designation, of itself, apart from another pact of retaining the increase, has only this force, namely, that the thing not be sold below a price of this sort, but by no means that it not be sold for a greater price, if this is possible. Nor indeed can he retain those 30 lire by reason of industry. For first, as appears from the case, there was no special industry of Ludovicus in that sale. Moreover, generally the increase of the price of a thing pertains of itself to the very price of the thing, because a thing which is worth 100 and is sold for 100 can also be worth 110, 120, 130, and be sold for this greater price. For the price of a thing, especially of some things, is not indivisible, and from many circumstances it can be increased as well as diminished.

If Ludovicus agreed with Aloisius about some wage to be received, this indeed is owed to him, namely that which was determined by pact, and which no longer depends on the judgment of the mandatary. But if no agreement was made about a wage to be received, then Ludovicus is judged to have wished to perform his office gratuitously. Nevertheless Ludovicus deserves some reward for a matter so usefully managed. And if he had not immediately found a buyer, but had had to apply notable time and undertake extraordinary labor to sell the ring, then, in a manner proportioned to the labor, he could have compensated himself. I. M. 1112 seqq., 1170; G. 563, 887, 888.

6. Maximinus orders the maidservant Claudia to buy necessary goods from Marcus. Since Marcus sells only inferior things and at a dearer price, Claudia buys the goods from other merchants at hand, of better quality and at a lower price. Sometimes, moreover, to buy the things at a still lower price, she goes to the public market, where she can also choose what things are better. Claudia would like to keep something at least for herself, and therefore she asks her confessor.

Q. What as to the case?

R. 1. Apart from a special pact between Maximinus and Marcus, Claudia, passing over Marcus and managing a matter very useful to her lord, violates no right of Marcus, and therefore is held to nothing toward him.

2. But the money which she gains by buying from other merchants she is held to return to her lord; for she herself buys the goods in the name of her master, wherefore the remaining money belongs to the master. Moreover, by reason of her office and of the stipend which she herself receives, she is held to procure the utility of her lord. Nor indeed is there any special industry or labor in this, that she herself buys goods from other merchants at hand. And the same must be said as to the profit received when she goes to the public market, unless, on account of the distance of the place and the untimely hour at which she must go there, there is special labor and fatigue on her part; and likewise some special industry in completing contracts with merchants of this sort, who sell things in greater quantity and at a lower price in the public market, which industry, that the matter may succeed well, certainly is not of all persons; especially since it can easily happen that the things are of inferior quality. Wherefore, if Claudia, by her labor and industry, buys goods in the public market in greater quantity and better quality, and at the same time at a cheaper price, so that Maximinus is altogether content, if she herself keeps something for herself, either of the greater quantity of goods bought, or of the reduced price, she does not seem to be disturbed. And if some scruple should still remain, if Maximinus, seeing the goods bought and considering their quantity and quality and price, shows himself altogether content, he now has ratified the manner of acting of Claudia. - I. M. 1170; G. 571, 572, 886.

7. Remigius buys for 50 lire a gem worth 200 lire, knowing that it is stolen and belongs to Germanus, that he may perform for him a matter very useful and pleasing. Otherwise Germanus would have lost the gem entirely. But Germanus indeed claims the gem for himself, yet refuses to refund to Remigius the price paid.

Q. What as to the case?

R. Germanus acts unjustly, in not wishing to refund the price to Remigius. For Remigius in the case truly undertook to manage his business usefully. Wherefore, both by natural law and by positive law, he is held to compensate the price paid. But since Remigius has a strict right to compensation, he can compensate himself from that very gem, by retaining it for himself, or by selling it, and by giving the excess of the price to Germanus. - I. M. 1118, 1119; G. 889, 890.

8. Raphäel bought a watch from Michäel for the price of 100 lire, which he gave to him, the watch having been received. Michäel forgot to note in his book the price received; hence after two years, reading through the book of sales, and seeing that the price of the watch had not yet been paid, he asks it from Raphäel. Raphäel affirms that he has already paid the price, and that at home he still keeps the schedule signed by Michäel himself of the price received. But when Raphäel could not find that schedule, and Michäel believed his own book rather than Raphäel, he brought the matter to the judge. In judgment Raphäel is condemned to pay the price and the expenses of the judgment itself. Raphäel patiently pays everything. But after ten years, while he was burning his useless papers, he found among them the lost schedule. He immediately showed it to Michäel; but Michäel opposes prescription to him. Then Raphäel consults an advocate, who responds that in the case he will obtain nothing from the judge. Then Raphäel, by occult compensation, renders himself indemnified both as to the price paid twice and as to the expenses of the litigation.

Q. 1. What contracts are had in the case? - 2. What concerning the sentence of the judge? - 3. What concerning Michäel? - 4. What concerning Raphäel?

R. To the 1st. Two contracts are had in the case: namely, the contract of buying and selling, and besides this the quasi-contract of the payment of what was not owed. I. M. 1124.

To the 2nd. The sentence of the judge indeed was just. For, the proof of payment failing, and the proof of payment owed and not yet satisfied standing, Raphäel is condemned by the judge rightly and deservedly. C. I. 1312.

To the 3rd. There is indeed difficulty in the prescription opposed by Michäel. From Roman Law the prescription of movables with title is made in three years, nor is the payment of what was not owed excluded from prescription; indeed this is also explicitly commemorated. Dig. lib. 41. tit. 10. L. 3. But this prescription is not had in the Italian Civil Code as to the action of reclaiming what was unduly paid. Nor likewise can prescription be had in the Italian Civil Code from the fact that the matter concerns a movable thing, namely money, for which possession in good faith and with title suffices, as is verified in the case. For whatever may be true of the French Civil Code, from which that disposition of law was taken, from the Italian Code prescription is had only as to third parties, but by no means as to those very persons between whom the contract or quasi-contract intervened. Whence it would seem that one must say that Michäel could not oppose prescription.

To the 4th. If prescription has not been completed by Michäel, as is established from what has been said, it follows that Raphäel can use occult compensation for the price unduly paid twice; but not for the expenses of the litigation. For in that litigation there was no injury on the part of Michäel, who proceeded in that litigation altogether in good faith, and also altogether justly according to the law.

846. Mandate is a contract by which the obligation of doing something for the advantage of another is undertaken gratuitously, for example, of transacting some business, of buying something, of selling, etc. I said, gratuitously; for if it is undertaken for a fixed price, it is rather called a hiring of work ¹.

¹ Above, in the note to n. 673, we observed that from the nature of mandate what should be called a wage properly so called is excluded, but not a salary or honorarium. Moreover, others are not pleased by this definition of mandate, in which no account is had of the mandator, but only of an obligation assumed by the mandatary. Therefore they think it is better defined thus: It is a good-faith contract, consisting in consent, by which an honorable business is committed to another accepting it, to be conducted gratis. Voet, book 17, title 1, n. 2.

1. He must fulfill all obligations contracted by the mandatary and consonant with the mandate; but not that which has been done beyond the mandate, unless he has expressly or tacitly ratified it.

2. He must furnish the mandatary those things which are necessary for the execution of the mandate, and refund the legitimate expenses which he made by occasion of the mandate, even if he has not brought the matter to a happy outcome.

3. He is bound to provide indemnity to the mandatary by reason of damages which, culpable imprudence being excluded, he has suffered by occasion of the mandate; for no one is bound, nor is he judged to wish, to confer a benefit on another with his own loss.

847. 1. He is bound to manage the business of the mandator diligently and as his own. Hence he is held at least for fraud and for carelessness theologically culpable.

2. He must keep himself within the limits of the mandate. Hence he can buy nothing for more, or sell for less, than what has been prescribed to him; for otherwise he would not act by force of the mandate.

3. He cannot demand a wage, unless it has been promised, or he himself had asked for it beforehand; nor is it lawful for him secretly to compensate his own labor.

4. He cannot by himself retain a profit for himself, if he sells, nor an excess of price, if he buys below the determined price, unless the owner consents. Yet accidentally the mandatary or broker can retain for himself an excess of price: 1. if the thing has become better by his special industry and undue labor; 2. if he tacitly agreed with the owner that he would give him nothing beyond the determined price or value; 3. if, for his favor, the seller lowers the price, or the buyer offers a greater sum. St. Lig., n. 825. See Cases, n. 885 and following.

Mandate is broken off in three ways: 1. by revocation of the mandate, which the mandator can do at will; 2. by renunciation of the mandatary, notified in due time; 3. by natural or civil death, or by interdiction, whether of the mandator or of the mandatary.

848. Management of affairs is a certain quasi-contract, by which someone undertakes the business of one absent and ignorant of it, to be usefully managed, without an express mandate, but from his commission reasonably presumed.

1. The manager of the business, just as a mandatary, is bound to administer another's affair as a good father of a family, and to repair damages inflicted on the absent person by his own fraud, negligence, or fault. Yet in many circumstances the obligation of compensating damages can be tempered, even in the external forum, especially when those damages arise from the inexperience or negligence of the manager who undertook the affair of another in the absence of a more skilled person.

2. The absent person, whose business is managed, is bound to observe agreements duly made by the manager, and to repair the expenses and damages arising from such management, even if the matter has turned out badly.

More probably he has a right to a congruent wage; for otherwise few would be found who would voluntarily undertake to manage the affairs of an absent person. Thus Antoine, c. 4, at the end, and others. See Cases, n. 889.

I. Mandate is a consensual contract by which something to be done is committed to another who undertakes it (art. 1737, Italian Code). - It differs from procuration, by which merely the faculty is given to someone of doing something for another. - It is of itself gratuitous. If a wage has been promised, it differs from lease of work in this, that the mandatary acts for another. Mandate can always be revoked; but the mandatary who was ignorant of the end of the mandate acts validly. It also ceases by the death or interdiction of either party.

Because the mandatary does not act in his own name, the juridical capacity which he would have to have in order to contract in his own name is not required in him. Thus a minor can be a mandatary (cf. Colin and Capitant, II, 710).

II. Management of affairs is, as it were, a presumption of mandate, by which someone usefully undertakes the affairs of another to be managed, who neither by express word nor tacitly, by silence, seemed to give a mandate. The owner, whose work has been usefully managed, ought to refund necessary or useful expenses and to observe agreements duly made; and, more probably, from natural law, to compensate the labor of the agent by a fitting wage. Positive laws must be approached.

Ratification, by which someone approves what another has done for him, in law is equivalent to mandate.

283. We treat all these gratuitous bilateral contracts very briefly, because it is sufficient for the confessor to apply the principles given concerning contracts in general.

A loan for use⁷⁸ is the gratuitous concession of some non-fungible thing for a sole and determinate use and for a fixed time.⁷⁹ If money is demanded for that concession, then it is already an onerous contract and is rather called letting and hiring, which will be discussed below, n. 305. The obligations of the lender and borrower for use are to be weighed a) from the agreement freely entered into; b) from the civil laws.

A precarium⁸⁰ is the same as a loan for use, with this difference: in a contract of precarium the thing lent can be demanded back at any moment at will, while in a loan for use this is not permitted until the stipulated time has elapsed.⁸¹

A deposit⁸² is a contract by which a movable thing is delivered to someone to be guarded gratuitously, on the condition that it be returned at the will of the depositor. According to modern practice, a thing to be guarded is often not received gratuitously, but some remuneration is demanded for its custody.⁸³ Positive laws are to be observed, especially if there is question of baggage deposited in railway stations, things entrusted to innkeepers, shares and bonds deposited in some bank, etc.

Generally it can be said:

1. The depositary, i.e., he with whom a thing is deposited, must exercise over the deposited thing that care which prudent and conscientious men have concerning such a thing. If he does not do this, he is compelled by a competent judge to repair any damage that may have arisen; indeed, he is bound even before the sentence of a judge, at least if his negligence was gravely culpable.

2. The depositary cannot use the deposited thing without the permission of the depositor, whether express or at least prudently presumed. This is evident of itself, for it is not lawful to use another's thing without the owner's permission. But if the depositary has illicitly used the deposited thing, e.g., money for trading, and has thereby taken profit, it must be seen whether such profit is an industrial fruit or a civil or natural fruit of the deposited thing. If it was an industrial fruit, he can retain the profit for himself; otherwise he must restore it to the owner according to the adage: "A thing bears fruit for its owner."⁸⁴

A sequestration⁸⁵ is a species of deposit; for it is a contract by which a thing in litigation is deposited with a third person under the condition that, when the litigation has been decided, it be restored to the victor.⁸⁶ It is conventional when it is made by the mutual will of the litigants; judicial when it is decreed by a judge. He with whom the thing in litigation is deposited is called the sequestrator. His obligations are: 1. in guarding and preserving the thing he must employ no less diligence than he employs for his own things; 2. he must not return the sequestered thing unless the judge so establishes or all the litigants so consent.

A mandate⁸⁷ is a contract by which one person undertakes to conduct a business in the name of another. Although this contract by its nature is gratuitous, it is nevertheless generally entered into for an agreed compensation. Civil codes are wont to establish very precisely the rights and obligations both of the mandator and of the mandatary. These statutes are to be observed also in the forum of conscience.

The management of affairs⁸⁸ is a quasi-contract by which someone undertakes the business of another without an express mandate indeed, but from the presumed will of the absent owner. The management of affairs is nothing other than a presumed mandate. It takes place, e.g., if someone finds a thing which he is bound to guard faithfully by the presumed will of the legitimate owner until the latter appears and pays all necessary expenses.⁸⁹

⁷⁸ Loan for use (Leihvertrag, prêt à usage, commodat, loan).

⁷⁹ Cf. German Civil Code § 598ff.; Swiss Code of Obligations art. 305ff.

⁸⁰ Gratuitous loan at will, a loan revocable at will (Bittleihe, Leihe auf Widerruf).

⁸¹ A precarium is defined in Roman law (L. 1, Dig. 43, 26) as that which is granted for use to one asking by entreaties for as long as he who granted it permits. In present-day laws, precarium is not wont to be considered a contract distinct from loan for use. Precarium must not be confused with the precaria of canon law. For precariae, or precaria in the singular, is a contract introduced by canon law by which, at entreaty and generally by reason of remuneration, the usufruct of some estate or other ecclesiastical immovable thing is granted to someone for the days of his life or for another time, under the law that every five years renewal of this concession or contract is to be sought (c. 1, 2, X 3, 14; cf. Ferraris, Prompta Bibl., s.v. "Precarium," n. 11). These precariae are the precursors of ecclesiastical benefices. Nevertheless, precariae were sometimes also granted to laymen (cf. Wetzer and Welte, Kirchenlexikon, s.v. "Precarium").

⁸² Contract of safekeeping or deposit (Verwahrungs- oder Hinterlegungsvertrag). German Civil Code § 688ff.; Swiss Code of Obligations art. 472.

⁸³ Cf. German Civil Code § 688ff.; French Civil Code art. 1917ff.

⁸⁴ Cf. St. Alphonsus, Theol. mor. l. 3, n. 748; French Civil Code art. 1936.

⁸⁵ Deposit of a disputed thing (Hinterlegung einer strittigen Sache).

⁸⁶ Cf. French Civil Code art. 1955ff.; Swiss Code of Obligations art. 480; Code of Canon Law, canon 1672ff.

⁸⁷ Power of attorney, authorization (Vollmacht, Ermächtigung).

⁸⁸ Representation without authority (Vertretung ohne Vollmacht).

⁸⁹ Cf. above, concerning finding, n. 48.

1088. • I. Mandate is a contract by which someone commits to another accepting a matter to be managed in his name. - He who undertakes the office of managing the matter is called mandatary; the one mandating, he who commits it.⁰¹

It belongs to the essence of this contract that the mandatary act the person of the one mandating, so that the things which he does by force of the mandate are held as done by the one mandating. But gratuitousness belongs only to the nature of this contract (cf. n. 1032). Therefore a mandate is considered undertaken gratis, unless a price is sanctioned either expressly or tacitly, for example by reason of the office which the mandatary exercises. Nor does a mandate, on account of an added stipend, pass into a hiring of work, since its essence is not destroyed by such a disposition. Cf. nevertheless what we shall say n. 1141.

Mandate is TWOFOLD: 1. special, if it comprises only one business, or certain determined businesses; 2. general, if it extends itself to all the businesses of the one mandating which are of pure administration.

Among MANDATARIES are numbered the vicars of merchants, who buy and sell wares; those placed over factories, who hire craftsmen and complete agreements; representatives of commerce, brokers (cf. n. 1140), procurators, syndics in cession of goods, etc., etc.2

1089. The one MANDATING is held: 1. to furnish the things necessary for the execution of the mandate, and to pay expenses made; 2. to fulfill obligations contracted by the mandatary and consonant with the mandate; 3. to preserve the mandatary unharmed concerning damages.

1090. The obligations of the MANDATARY are: 1. not to exceed the limits of the mandate; - 2. to manage the business diligently; - 3. to render an account to the one mandating concerning the matter managed, and to restore to him whatever he perceived by force of the mandate, whether by title of gain or by title of gift; because he does not acquire for himself.

A mandate is extinguished: a) when the business committed is finished; b) by revocation of the mandate, which the one mandating can make at will; c) by renunciation of the mandatary notified at the due time; d) by natural or civil death, or interdiction, either of the one mandating or of the mandatary; but in Germany, only by the death of the mandatary.⁰²

1091. • II. Management of an affair is a certain quasi-contract by which someone undertakes the useful management of the affair of an absent person, without an express or tacit mandate, but from his reasonably presumed commission. It is a presumed mandate.⁰³

1. The manager of the affair IS HELD to administer diligently the matter of another until the owner has provided; to repair damages inflicted from his own fault. Yet in many circumstances the obligation of compensating damages can be tempered, especially when these proceed from the unskillfulness of a benevolent manager, in defect of a more skilled one. - More probably, he has a right to a fitting wage; otherwise few would be found who would wish to manage the affairs of absent persons. Cf. Ami du Cl., 1912, p. 927.

2. The absent person whose business is managed well IS HELD to observe agreements duly made by the manager, and to repay to him expenses and damages arising from such management, even if, notwithstanding the good management, the matter had an evil success.⁰⁴ See the things said above n. 885.

925. • Mandate is a contract by which an obligation of doing something for the convenience of another is gratuitously taken up, for example of completing some business, buying something, selling, etc.... I have said: gratuitously; for if it is taken up for an agreed price, it is rather named a hiring of work.

1° He ought to fulfill all obligations contracted by the mandatary and consonant with the mandate; but not that which has been done beyond the mandate, unless he has expressly or tacitly held it ratified.

2° He ought to furnish to the mandatary those things which are necessary for the execution of the mandate, and refund to him the legitimate expenses which he made on occasion of the mandate, even if he did not lead the matter to a happy outcome.

3° He is bound to render the mandatary unharmed by reason of damages which, culpable imprudence being set aside, he suffered on occasion of the mandate; for no one is bound, nor is he judged to wish, to confer a benefit on another with his own loss.

926. • 1° He is bound to conduct the business of the one mandating diligently and as his own. Whence he is bound at least for fraud and theologically culpable negligence.

2° He ought to contain himself within the limits of the mandate. Whence he can buy nothing at more, or sell at less, than has been prescribed to him; for otherwise he would not act by force of the mandate.

3° He cannot exact wages unless they have been promised, or he himself previously asked for them; nor is it licit for him secretly to compensate his work.

4° Of himself he cannot retain profit for himself if he sells, nor an excess of price if he buys below the determined price, unless the owner consents. Yet by accident the mandatary can retain the excess of price: 1° if the thing has become better by his special industry and undue labor; 2° if he tacitly agreed with the owner that he would give nothing to him beyond the determined price or value; 3° if, for the mere favor of the mandatary himself, the seller diminished the price or the buyer offered a greater sum; 4° if the profit is of small moment; 5° if, ordinary diligence having been used and a greater price not found, you buy the thing for yourself, and afterward sell it for more, and pay to the owner only the assigned price. Resolve the same if another committed to you to buy something at such a price, and you find the thing at a lesser price; namely, then you will be able to buy the thing for yourself, and afterward sell it at a greater price, provided that afterward, ordinary diligence having been used, you would not have found the occasion of buying the thing except at that greater price.¹

Mandate is broken in three ways: 1° by revocation of the mandate, which the one mandating can make at pleasure; 2° by renunciation of the mandatary, notified at the due time; 3° by natural or civil death, or interdiction either of the one mandating or of the mandatary.

927. • Management of affairs is a certain quasi-contract by which someone takes up the business of an absent and ignorant person to be usefully conducted, without express mandate, but from his commission reasonably presumed.

1° The manager of the affair, just as the mandatary, is bound to administer the thing of another as a good father of a family, and to repair damages inflicted on the absent person from his fraud, negligence, or fault. Yet in many circumstances the obligation of compensating damages can be moderated, especially when those arise from the inexperience or negligence of a manager who took up the thing of another to be conducted in defect of one more skilled.

2° The absent person whose business is conducted is bound to observe agreements rightly made by the manager, and to repair to him expenses and damages arising from such management, even if the matter has succeeded badly.

More probably he has a right to suitable wages; for otherwise few will be found who spontaneously take up the affairs of an absent person to be conducted. - Thus Antoine² and others.

588. Mandate (mandat, procuration; lastgeving) is the act by which some business is committed to someone to be managed gratuitously; but if it is undertaken by him, the contract is perfected (a. 1984). Hence it is a contract by which one commits something to another, to be done in his name, and the other undertakes to manage it gratuitously. Hence mandate by its nature is a gratuitous contract, because it is connatural to mandate that the business be undertaken and managed gratuitously; unless, however, the contrary is stipulated (a. 1986), in which case it is a letting of work.

One mandate is special, by which the mandator commits one only or several designated businesses; another is general, by which he commits all his affairs to the mandatary (a. 1987). Yet this, conceived in general words, pertains only to acts of administration; wherefore for alienation, or for conceding a mortgage, or for any other acts of dominion, an express or special mandate is required (a. 1988).

589. The obligations of the mandatary are (a. 1991 sq.):

1. To manage the affairs committed to him diligently and usefully, and as if they were his own; whence he is held concerning defects committed in the management and damages following from them.

2. To complete the business begun, even when the mandator has died, if there is danger in delay.

3. Not to exceed the limits of the mandate, for example, to spend a greater sum than the mandator prescribed.

4. To render an account of the execution of the mandate committed to him, and to restore the gain which he received from the mandate, unless by accident gain follows from special industry or undue labor.

5. Not to demand a wage, unless it was promised.

590. The obligations of the mandator are (a. 1998 sq.):

1. To fulfill obligations contracted in his name by the mandatary and consonant with the mandate; but not what has been done beyond the mandate, unless that has been expressly or tacitly ratified (a. 1998).

2. To refund to the mandatary expenses made for the execution of the mandate, and to pay the stipend if it was promised, even if the matter did not have a prosperous success (a. 1999).

3. To indemnify the mandatary concerning damages which, culpable imprudence being set aside, he suffered on the occasion of the mandate (a. 2000).

591. Mandate is dissolved:

1. By revocation of the mandatary made by the mandator: for the latter can revoke the mandate at any time;

2. By renunciation of the mandatary: for the latter cannot be forced to continue unwillingly to bear a burden gratuitously undertaken;

3. By natural death, interdiction, and insolvency (deconfiture) of either the mandator or the mandatary (a. 2003 sq.).

592. Management of affairs. Affine to mandate is negotiorum gestio (zaakwaarneming), by which someone undertakes to manage usefully the affairs of an absent person, even one who is ignorant of it, as if from his reasonably presumed commission. Hence it is a quasi-contract arising from the act of him who spontaneously manages the affairs of another, whether the latter knows it or not (a. 1372).

The manager of the affair is held (a. 1372-74): 1. to administer it diligently; 2. once begun, to complete it; 3. to render an account of the things which he has managed.

He whose affair is well managed is held: 1. to observe agreements entered into in his name by the manager; 2. to keep him indemnified for all personal obligations which he undertook; 3. to refund to him all useful or necessary expenses which he made, even if the matter had a bad result (a. 1375).

Mandate is a contract by which some business, for example, of buying something, selling, etc., is committed by one person to another, and is undertaken by that same other person to be carried out gratuitously. - I said gratuitously; for if it is undertaken because of an established price, it is rather called hiring of work.

But management of affairs is a certain quasi-contract by which someone undertakes usefully to manage the business of an absent and ignorant person, without express mandate, but with his commission reasonably presumed.

Concerning the obligations of the mandator and of the mandatary, these things are to be held:

I. The mandator: 1st, ought to fulfill all obligations contracted by the mandatary and consonant with the mandate; but not that which has been contracted beyond the mandate, unless he has expressly or tacitly ratified it; 2nd, ought to furnish to the mandatary those things which are necessary for the execution of the mandate, and to refund to him the legitimate expenses which he made on occasion of the mandate, even if he did not bring the matter to a happy outcome; 3rd, he is held to indemnify the mandatary by reason of damages which, apart from culpable imprudence, he suffered on occasion of the mandate; for no one is held, nor is he judged to wish, to confer a benefit upon another with his own loss.

II. But the mandatary is held: 1st, to manage the business of the mandator diligently and as his own, and therefore it is necessary that he answer for deceit and theologically culpable carelessness; 2nd, he must keep himself within the limits of the mandate, whence he can buy nothing for more or sell for less than has been prescribed to him; for otherwise he would not act by force of the mandate; 3rd, he cannot exact a wage, nor is it licit for him secretly to compensate his own work.

Concerning obligations connected with management of affairs, observe the following:

I. The manager of an affair, just like a mandatary, is held to administer another's matter as a good father of a family, and to make good damages inflicted on the absent person from his deceit, negligence, or fault. Nevertheless, in several circumstances the obligation of compensating damages can be tempered, even in the external forum, especially when those damages proceed from the inexperience or negligence of the manager, who undertook managing another's matter in default of one more skilled.

II. The absent person whose business is managed is held to observe agreements duly made by the manager, and to make good to him expenses and damages proceeding from such management, even if the matter has succeeded badly.