1. Gratuitous services in the Roman world Titius gets the famous advocate Hortensius to defend him in trial. Is this a locatio conductio of some sort? Socially unacceptable: merces = mercennarius. Which contract then? Mandatum nisi gratuitum nullum est. Honorarii, remunerationes. Why if gratuitous we consider it a contract, who can sue for what? Mandator: performance, reimbursement. // Mandatarius: expenses, damages.

2. Liability of the mandatory Which standard? dolus? dolus and culpa? Criteria: a) the balance of interests; compare with deposit and commodatus; b) infamia Mod. diff. Coll. 10.2.3: In mandati vero iudicium dolus, non etiam culpa deducitur. … (in the trial on mandate, the fraud but not negligence is examined Ulp. 29 Sab. D. 50.17.23: Certain contracts only involve fraud, others involve both fraud and negligence. Those which involve fraud are deposits and transfers under a precarious title; those which involve both fraud and negligence are mandate, loan for use, sale, pledge, hiring, and also the bestowal of dowry, guardianship, and the transaction of business.... Contradiction? Altruistic and not so altruistic mandatarii The double side of the liability standard of the mandatarius: in the action against him; in his own action against the mandator.

3. Liability of the mandator I commission you to undertake my defence in trial, you do so, and fail to win my absolution. Can you sue me for the expenses? Yes, unless you've lost because of your own negligence. If because of being in Rome for my sake, a slave of yours dies because of an epidemic spreading through the city, can you sue me for the damages? Afr. 8 quaest. D. 47.2.62.5: But, with reference to what concerns the action on mandate, he says that he doubts whether it should also be held that all damages should be made good. And, indeed, this principle should be observed even more than in the preceding cases; so that if he who gave the order for the purchase of a certain slave did not know that he was a thief, he will, nevertheless, be compelled to make good all damages sustained; for it will be perfectly just for the agent to allege that he would not have suffered the damage if he had not received the order.

4. Restrictive approaches Paul. D. 17,1,26, 6-7: A mandator cannot make a charge of all the expenses which he may have incurred; as, for instance, where, because he has been robbed by thieves, or has lost property by a shipwreck, or he, or the members of his family, have been attacked by disease, he has been compelled to incur expense; for these things should be rather attributed to accident than to mandate.... Paul. 3 Nerat. D. 46,1,67: After having made use of an exception, which should have benefited you, an unjust decision was rendered against you. You can recover nothing by virtue of the mandate, for the reason that it is more equitable that the wrong done to you should not be redressed rather than be transferred to another; provided that, through your own negligence, you caused the unjust decision to be rendered against you.

5. Exceeding the terms of mandate A commissions B to purchase an estate for 100, and B buys it for 120. Preliminary question: can the seller sue A for the price? Indirect agency: mandate does not concern third parties nor changes their position. Is A obliged to pay the 120 to B? If B is ready to transfer the farm to A for 100, can he force A to accept it?

6. I. 3.16.8 He who executes a mandate ought not to exceed its terms; as, for example, where anyone commissions you to purchase land, or to become surety for Titius for a hundred aurei, you should neither purchase for a larger sum, nor become security for a greater amount; otherwise, you will not be entitled to an action of mandate against him; so that, as held by Sabinus and Cassius, you would bring suit to no purpose, even if you wished to do so for only a hundred aurei. Authors of the other school hold that you have a right to bring suit up to a hundred aurei; and this opinion is certainly the more liberal one.

7. Paul. 32 ed. D. 17.1.3.2 If I fixed the price, and you bought the article for more, certain authorities deny that you will be entitled to an action on mandate, even though you are ready to pay the amount of the excess; for it is unjust that I should lack an action against you if you were unwilling to do so, but that you should have one against me if you are willing.

8. Mandatum tacitum A being absent from Rome, B, knowing that a trial against him will take place, undertakes his defence without being asked. Quid iuris? Negotiorum gestio, if anything. More restrictions to ask for the damages and expenses, higher liability Never mandate? He writes informing of his intentions, and A does not answer. Knowing and not preventing Useful solution to the problem of regress in collateral.

9. Mandatum tua tantum gratia You are willing to buy some land, and I advise you to buy a certain plot in northern Africa from a friend of mine, immensely fertile land I assure you. You buy it, and it turns out to be extremely arid. Was this mandate? Can you sue me for the damages? Gai. 3.156: If, however, I direct you to perform some act for your own benefit, the mandate will be to no purpose, for what you are about to do for your own advantage should depend on your own judgement, and not be done on account of my mandate. Therefore, if you have some idle money at home, and I advise you to lend it at interest, and you lend it to a party from whom you cannot collect it, you will not be entitled to an action of mandate against me. Again, if I advise you to purchase some article, even though it will not be to your advantage to do so, I will still not be liable to you in an action of mandate....

10. Mandatum qualificatum A friend of mine needs credit, and I send it to you, with a letter of recommendation, expressly stating that I undertake the risk of him being insolvent. Is that a mandate? Can you sue me if my friend is not able to pay? Gai. 3.156:... These rules have been so well established that the question arose whether a party is liable in an action of mandate who advised you to lend money to Titius. Servius denied that liability is incurred, and thought that an obligation could not arise in this instance, any more than in one where a person is generally advised to lend his money at interest. We, however, adopt the contrary opinion of Sabinus, for the reason, that you would not have lent money to Titius if you had not been advised to do so. What is the practical use of this kind of mandate? Inter absentes, free from trial consumption

11. Mandatum morte dissolvitur I have been summoned by some creditors to appear in court in Rome on January 1st. Knowing that you are travelling to Rome, I commission you to undertake my defence. You die in the trip, and as a consequence, I am declared indefensus by the magistrate, and all my property in Rome is seized. Can I sue your heirs for the damages? Gai. 3,160: Again, if before a mandate was begun to be executed, the death of either of the parties should take place, that is the death of him who gave the mandate, or of him who received it, the mandate is annulled.

12. Mandatum morte mandatoris, non etiam mandati actio solvitur (Paul. D. 17.1.58pr.) If before your death you had already won my absolution, can your heirs sue me for the expenses? Paul. 4 quaest. D. 17.1.58pr.: mandatum morte mandatoris, non etiam mandati actio solvitur What, if it is me who dies, and you carry on with the commission. Can you sue my heirs for the expenses? Gai. 3.160: However, for the sake of convenience, the rule has been adopted that if the party who gave me the mandate should be dead, and I, being ignorant of his death, should execute the mandate, an action of mandate can be brought against me; otherwise a just and natural want of information would occasion me loss....