viii. mandatum Flashcards
actions arising from MANDATUM
principal (mandator): ACTIO MANDATI DIRECTA
agent (mandatarius): ACTIO MANDATI CONTRARIA
RES INTEGRA
= continued consensus between parties for the contract
duties of mandatrius
- duty of information, protection, care (BONA FIDES)
- culpable non-performance: expectation interest
- only liable for DOLUS and CULPA LATA
duties of mandator
- recompense expenses incurred while duly performing mandate
- losses if directly connected to mandate, regardless of culpability (principal’s liability of risk)
impossibility of performance by mandate
- not mandatariuses fault: cannot demand fulfillemtn and must refund expenses incurred before impossibility
- mandatories fails to perform even though he could have: viable for mandator’s interest
disagreement on what happens if mandatarius does not keep to limits of mandate (purchases object for higher price)
Gaius, Sabinus, Cassius: Mandaotr can bring an ACTIO MANDATI DIRECTA for correct performance, but not obliged to do so. Mandator can reject mandatarius’s offer to have the object for originally agreed price, and mandatarius cannot demand to be reimbursed for expenses.
Proculians: if mandatarius is ready to give object up for originally agreed price, he can demand compensation with ACTIO MANDATI CONTRARIA.
MANDATUM MORTE SOLVITUR
= ‘mandate ends with death’
→ if agent already incurred expenses, heir must reimburse
→ agent must give up gains to heirs
loan mandate (MANDATUM QUALIFICATUM)
= Mandator obliged mandatarius to give loan to a third party on mandatarius’s own name and expense. Loan comes into existence between mandatories and third party. Mandator must reimburse for losses mandatories incurs if third party does not pay back.
disagreement on when an advice to lend out money constitutes a mandate
Variant 1: A exhorts B to lend out money lying around for interest
Variant 2: A exhorts B to lend out money to a specific person
Gaius (Sabinus): In Variant 1, A is not liable for any losses that B incurs because it is a MANDATUM TUA GRATIA (mandate exclusively in interest of agent). In Variant 2, they conclude a MANDATUM and thus A is liable and B could enforce their claim with ACTIO MANDATI CONTRARIA.
Servius: In both variants A just given an advice and thus is not liable.
CESSIO
= transfer of a right arising from an obligation with the effect that the right to claim performance from debtor (debtor census) now belongs to new creditor (cessionary) instead of original creditor (cedent)
→ generally only possible with novation agreement through stipulation, concluded between new creditor and debtor at the behest of original creditor
NOVATIO
= a novation agreement causes an existing contractual relationship to be replaced by a new one. Securities provided by old obligation (eg. pledge, guarantee) also cease to exist.
MANDATUM AD AGENDUM IN REM SUAM
= change of creditor without debtors consent: original creditor giving new creditor to enforce the claim in court on original creditor’s behalf
→ they may agree that agent is to keep the proceeds, then even though it also serves mandator it an MANDATUM IN REM SUAM.
→ mandator and debtor may agree on extension and waiver of claim even after mandate was issued
→ imperial rescripts: procurator has ACTIO UTILIS to take legal action against debtor if mandator dies and mandate terminates
