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.

I. Notion. Here one commanding is understood as one who efficaciously moves another to inflict damage in his own name, that is, in the name of the one commanding. For in this the one commanding differs from the one counseling: he who acts by command acts in the name of the one commanding; he who acts by counsel acts in his own name. For the rest, it makes no difference whether another is induced to inflict damage by precept or by threats or prayers or by contract, whether explicitly or tacitly. Nor is it required that the one commanding possess authority over the mandatary.

II. Damages to be repaired. The one commanding is bound to restore:

1. The damage which he ordered to be inflicted.

2. The damage which, besides the damage commanded, naturally follows from carrying out the order, and which he foresaw at least confusedly would follow; as if soldiers ordered to devastate a city kill citizens. It must be said otherwise concerning damage which is not morally connected with the damage commanded, or which was in no way foreseen; as if, being ordered to strike someone lightly, you kill him. It must also be said otherwise, sufficiently probably, concerning damage which the mandatary by error inflicted on someone other than the one commanded, for example on Peter instead of Paul. The reason is that in the case the command seems rather an occasion than a cause, while the error of the mandatary seems the cause of the damage. There is added that in this hypothesis the one commanding did not will the damage which in fact was inflicted (n. 993).

3. The damage which befell the mandatary in the execution of the command, the one commanding is bound to restore, if the danger of damage was attached to the execution and the mandatary was unjustly forced or deceived; otherwise if the mandatary freely accepted the command and the danger of damage, for instance because of a promised reward.

III. Cessation of the obligation. In order that the one commanding as such be freed from the obligation of restoring, there is required a serious revocation of the command, and that made known to the mandatary in time. If the revocation for any reason whatever was not made known in time, the command continued to exercise force, and therefore the one commanding remains a cause of the damage (St. Alphonsus, III, 558).

673. • 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.

674. 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.

675. 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.

2. 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.

3. 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.

517. (A) Notion. In general, one mandating is said to be he who entrusts to another a business to be carried out in his own name; but in our matter he is one who induces another to inflict damage upon the neighbor in his own name; if the one mandating is a superior, who has the power to command, he is called one commanding. - And this indeed can be done in a twofold way: explicitly, namely by command, threats, prayers, hope of reward, or another act by which another is positively moved to harm the neighbor; implicitly, if by deeds or words he signifies to a subject that damage inflicted on another will be pleasing to himself; e.g., when Henry II, king of England, was often complaining that he had no peace with Thomas, Bishop of Canterbury, so that the courtiers understood that they would do something pleasing to the king if they took Thomas out of the midst.¹ - But he is not judged one mandating who only ratifies damage already previously inflicted in his name.

¹ Breviarium Rom., Winter Part, On the feast of St. Thomas, lessons 5-6.

518. (B) Obligations of the one mandating toward the one damaged.

(a) The one mandating is bound to repair all damages which another, by force of the mandate, inflicted upon the neighbor; and all those things which are morally connected with the execution of the mandate, namely those which at least confusedly were foreseen, after all circumstances have been carefully weighed. For he who mandates that some damage be done in his name perpetrates it through another; but he who acts through another is judged to act through himself, and therefore is bound to repair this damage.

I said: by force of the mandate; hence if the mandatary transgressed the limits of the mandate, so that this could not have been foreseen, the one mandating is not bound to repair these further damages, nor therefore is he bound concerning damages which the mandatary inflicted from an error which could easily have been avoided.

(b) If the one mandating revoked the mandate, and this revocation became known to the mandatary before the damage was inflicted, he is not bound to restitution, provided he is only one mandating and not one counseling (below, n. 523); because when such a revocation is known, the mandate is now extinguished, and if the mandatary inflicts damage, it is perpetrated in his own name. - But, if the revocation did not become known, the damage truly follows from the mandate.

519. (C) Obligations of the one mandating toward the mandatary. As regards damages which the mandatary himself suffers, the one mandating is bound to repair them if by force, fear, fraud, or another unjust mode he compelled the mandatary to do this, or also if he expressly obligated himself to furnish such indemnity; in the former case he truly is the cause of this damage; in the latter he is bound to reparation by force of contract; - otherwise, the one mandating is not bound: for he who spontaneously, or for an agreed reward, undertakes some business to be carried out, assumes upon himself the dangers of the execution.

759. • One commanding or mandating is called he who induces another, whether by explicit or implicit command (for example by silence, which is equivalent to consent), as one set over him; or by force, threats, or prayers; or by express or tacit contract, to inflict damage in his name, that is, for his utility or favor (and thus he is distinguished from one counseling), upon another.

One commanding is bound to repair every damage commanded and inflicted by force of the mandate; otherwise, however, if he only ratifies damage already done. The reason is that in the former case, but not in the latter, he efficaciously influences the damage.

760. Questions. - Query 1° Is one mandating bound to restitution if he revoked the mandate before the damage was inflicted?

Resp. Negatively, if the revocation becomes known to the mandatary before execution of the mandate; otherwise, if for any cause whatever it does not become known at all or becomes known too late; because in this case, but not in that one, he influences the damage (n. 750. q. 4°).

Query 2° Is one mandating bound concerning damages which come to the mandatary in the execution of the mandate?

Resp. Affirmatively, if the one mandating compelled the other by fraud, force, or unjust fear, or if an agreement concerning indemnity preceded; but not even in this case is he bound concerning damages coming to the mandatary by his own fault or by accident (which no one furnishes), unless he also promised to furnish against accident. Otherwise, negatively.

Query 3° Is one mandating bound to repair damage which the executor from invincible error inflicted upon another?

Resp. Negatively, provided the error does not almost follow spontaneously from the mandate itself because of the difficulty of the thing commanded (Mar. p. 280. n. 86). The reason is that the true cause of the damage is the error of the mandatary, not the mandate.

761. • Query 4° Whether and when must one mandating also warn him whom he commanded to be harmed?

Resp. Negatively, at least from justice, if he has already efficaciously revoked the mandate. Otherwise affirmatively, provided a much greater inconvenience, for example danger to reputation or liberty, does not threaten him from the warning. For what removes the obligation of repairing damage also removes the obligation of guarding against it. But the obligation of furnishing for damage inflicted is to be fulfilled as soon as it can be. Mar. p. 279. n. 84.

311. A mandans (mander; bevelen or gebiederi) is one who commits to another a business to be carried out in his own name; in the case, one who by his express or tacit mandate moves another to inflict damage in his own name, namely, in favor of himself, that is, of the mandator: whether he does it by commanding or by asking, whether he has authority or not.

It can happen either explicitly: by command, threats, entreaties, hope of reward, or another positive act by which another is moved to harm his neighbor; or implicitly: by some sign, word, or deed, by which someone manifests his will, as if he complains that no one will avenge an injury done to him, as Henry II, king of England, complained that he could not have peace in the kingdom with one priest (whom all understood to be Thomas of Canterbury); but it is not enough that someone merely ratify damage already inflicted beforehand in his favor, or that he not impede another prepared to inflict it, because he is by no means truly a mandator and positive efficacious cause of the damage.

A. Toward the person damaged, the mandator is bound to repair all damages which the mandatary inflicted on the neighbor by force of the mandate, or which were morally connected with the execution of the mandate and therefore at least in confusion were foreseen, as if mutilation follows from blows with cudgels, or if, with the barn of an enemy being set on fire, the barn of a neighbor also is burned. For the mandator is the principal and primary cause, which perpetrates the damage through another; the executor is only the secondary and ministerial cause which acts for the mandator.

Nevertheless the mandator is not bound concerning damages inflicted but not by force of the mandate; namely:

1. if they were inflicted beyond the limits of the mandate from the malice of the mandatary or from error, provided the error, because of the difficulty of the thing mandated, does not as it were follow from the mandate itself: for in these the mandatary acted in his own name, but did not act in the name of the mandator. Thus, for example, if in place of a beating he inflicted death, or in place of Peter he killed Paul;

2. if the mandate has seriously and efficaciously been revoked, so that the revocation became known to the mandatary before the damage was inflicted: for by such revocation the mandate is extinguished, whence the mandatary, inflicting damage, now perpetrates it in his own name, but not in the name of the mandator. And therefore the latter is now not bound to restore as mandator, indeed in no way, unless he also was a counselor or one not obstructing: for then he would be bound under another quality.

But a) if the mandate can no longer be revoked, the mandator is bound from justice, even with at least equal damage, to use some other means to impede the damage, for example, by warning the owner, because from justice he is bound to impede it as much as he can;

b) if the revocation did not become known or another means cannot be employed, the damage truly follows from the mandate and is to be repaired;

c) if some third party maliciously impeded the revocation, he owes the mandator compensation for the restitution.

B. Toward the mandatary, the mandator per se is not bound to repair damages incurred by him: for he who entirely freely, and especially with an agreed wage, undertakes some business to be carried out, assumes in himself the perils of the execution. Per accidens the mandator is bound concerning damages:

1. if he has expressly obligated himself to furnish that indemnity;

2. if he morally coerced the mandatary by force, fear, fraud, or another unjust means, and the damages have a connection with the execution of the mandate; therefore excepted are those damages which the mandatary incurs from imprudence or rashness: for these he ought to impute to himself.

One commanding or mandating is called he who, on account of his own advantage or in favor of himself, moves another by command, prayers, or other means to inflicting damage on someone. It is said on account of his own advantage, because in this the one mandating differs from the one counseling; for where there is a mandate, the executor acts in the name and in favor of the one mandating, but where there is counsel, he acts in his own name and in favor of himself or of some other third party. Hence it is not necessary that the one mandating be the superior of the mandatary. - Cf. Carrière, vol. 3, n. 1168. - Ballerini, note (b), p. 573.

I say. The one mandating is held to repairing every damage which is inflicted by force of the mandate, because he himself is the principal cause, morally indeed but efficaciously, moving another to harm; and since otherwise he is supposed formally unjust, it follows that all the conditions of unjust damaging are verified in him.

You Will Resolve. - 1st. The one mandating is not held to restitution if he revoked the mandate before the damage was inflicted and the revocation became known to the mandatary before execution of the mandate; because then he does not flow into the damage.

2nd. But if the one mandating did not revoke the mandate, even if he retracted the depraved will, or indeed revoked it, but not in time, or finally if it is clear that the revocation made in time was not heard or understood by the mandatary on account of deafness or distraction, he will be held to restitution, because the damage follows by force of the prior mandate.

I. One commanding is said to be he who by his express or tacit mandate moves another to inflict damage upon someone in the name of the commander himself. He is held not only for the damage which he expressly commanded, but also for that which, the circumstances being weighed, could humanly have been foreseen as about to follow from his command : as if he command a servant to mutilate Peter, but the servant in mutilating kill him.

II. Where the commander revoked the mandate tacitly or expressly, and that revocation came to the knowledge of the agent, regularly the commander is not bound to restore qua commander, even though the effect follow; for through the revocation made known, the mandate expires, and thus he can no longer be reckoned the cause of the damage, nor does the agent then act in the name and by the will of the commander, but in his own name and by his own motion.

I said that he is not bound to restore « as commander, » because he can, even after revocation of the mandate, be bound under other titles : 1° As counseling, if by commanding he imbued the agent's mind with perverse arts and counsels, whose force and impression he did not sufficiently wear away. 2° As not hindering, if, notwithstanding the revocation of the mandate, he does not impede, insofar as he can, the agent obstinate in perpetrating the crime, because he is the cause why his neighbor is in such danger, which therefore he is bound by justice to avert if he can. At least this is probable.

[If it be established to the commander that the revocation of his mandate was not heard or understood by the agent, v. g., on account of deafness, or because letters were intercepted, he is bound to reparation of the damage; for in fact he efficaciously flowed into the damaging action. The sin indeed was retracted, but the freely posited cause was not removed.]

III. When the commander cannot revoke the mandate efficaciously, he is bound to warn the one about to be damaged that he provide for himself³⁹³ , even at equal loss to himself, if there be hope of impeding this evil, yet not at a loss to himself far greater and of higher order. ³⁹³ S. Lig., lib. IV, n. 559, 2ª sent.

[IV. The commander is bound to repair the damages which accrue to the agent from execution of the command, if he impelled him through fraud, force or grave fear, and foresaw the ensuing damages at least confusedly. The reason, because he is the positive, morally efficacious and unjust cause of the damage. Otherwise, probably, if the agent wished spontaneously, or hired for pay, to take upon himself the whole burden and consequences of his action.

V. If the agent damage another through avoidable error, v. g., if commanded to kill Peter, he kill Paul, or if damage befall someone because the agent spontaneously exceeded the limits of the command, the commander is bound to nothing : because he is not the positive and morally efficacious cause of an effect which he could not foresee.

VI. A superior who ratifies the simple proposal of inflicting damage upon someone is held to restitution; for by his approbation, converting the proposal into firm will, he becomes in a manner a commander relative to the inferior, and has flowed positively, efficaciously and unjustly into the damage.]

COUNSELING

[I. One counseling is said to be he who by counsel, prayers, promises, suggestion of a motive, or showing a way of doing harm, induces another to inflict damage upon a third person. He differs from the commander; because the executor of the command acts in the name and for the advantage of the commander, but the executor of the counsel in his own name, although at the impulse of another's counsel.]