1911 Encyclopædia Britannica/Mandate

MANDATE (Mandatum), a contract in Roman law constituted by one person (the mandatarius) promising to do something gratuitously at the request of another (the mandator), who undertakes to indemnify him against loss. The jurist distinguished the different cases of mandatum according as the object of the contract was the benefit of the mandator or a third person singly, or the mandator and a third person, the mandator and the mandatarius, or the mandatarius and a third person together. When the benefit was that of the mandatarius alone, the obligations of the contract were held not to arise, although the form of the contract might exist, the commission being held to be merely advice tendered to the mandatarius, and acted on by him at his own risk. Mandatum was classified as one of the contracts established by consent of the parties alone; but, as there was really no obligation of any kind until the mandatarius had acted on the mandate, it has with more propriety been referred to the contracts created by the supply of some fact (re). The obligations of the mandatarius under the contract were, briefly, to do what he had promised according to his instructions, observing ordinary diligence in taking care of any property entrusted to him, and handing over to his principal the results of his action, including the right to sue in his name. On the other hand, the principal was bound to recoup him his expenses and indemnify him against loss through obligations he might have incurred.

The essentials and the terminology of the contract are preserved in most modern systems of law. But in English law mandate, under that name, can hardly be said to exist as a separate form of contract. To some extent the law of mandatum corresponds partly to the law of principal and agent, partly to that of principal and surety. “Mandate” is retained to signify the contract more generally known as gratuitous bailment. It is restricted to personal property, and it implies the delivery of something to the bailee, both of which conditions are unknown in the mandatum of the civil law (see Bailment).