[IAUOLENUS libro septimo ex Cassio. ] §17.1.36.prita ut omnes summas maiores et minores coaceruet et ita portionem ei qui mandatum suscepit praestet.
[IAVOLENUS, Books from Cassius, Book VII.] that is, in such a way that [the honest man] aggregates all the higher and lower sums and thus pays the price of the share to him who undertook the mandate.
quod et plerique probant.
This is also approved by most writers.
§17.1.36.1Simili modo et in illa specie, ubi certo pretio tibi emere mandaui et aliarum partium nomine commode negotium gessisti et uilius emeris, pro tua parte tantum tibi praestatur, quanti interest tua, dummodo intra id pretium, quod mandato continetur.
In like manner also in that case, where I commissioned you to buy at a certain price and you conducted the business advantageously on account of the other shares and bought them cheaper, for your own share only so much is paid to you as is of interest to you, provided it is within the price contained in the mandate.
quid enim fiet, si exiguo pretio hi, cum quibus tibi communis fundus erat, rem abicere uel necessitate rei familiaris uel alia causa cogerentur? non etiam tu ad idem dispendium deduceris.
For what will happen if those with whom you held the land in common were forced to part with the property at a very low price either by the necessity of their household affairs or for some other reason? You also are not to be brought down to the same loss.
sed nec lucrum tibi ex hac causa adquirere debes, cum mandatum gratuitum esse debet: neque enim tibi concedendum est propter hoc uenditionem impedire, quod animosiorem eius rei emptorem esse quam tibi mandatum est cognoueris.
But neither ought you to acquire a profit for yourself from this cause, since a mandate must be gratuitous; for it is not to be permitted to you to obstruct the sale for this reason, namely, that you have learned that there is a more eager buyer for that property than what was commissioned to you.
§17.1.36.2Quod si fundum, qui per partes uenit, emendum tibi mandassem, sed ita, ut non aliter mandato tenear, quam si totum fundum emeres: si totum emere non potueris, in partibus emendis tibi negotium gesseris (siue habueris in eo fundo partem siue non) et eueniet, ut is cui tale mandatum datum est periculo suo interim partes emat et, nisi totum emerit, ingratis eas retineat.
But if I had commissioned you to buy a tract of land which is sold by shares, but in such a way that I am not otherwise bound by the mandate than if you bought the whole land: if you could not buy the whole, in buying the shares you have conducted business for yourself (whether you had a share in that land or not), and it will result that he to whom such a mandate was given buys the shares in the meantime at his own risk and, unless he buys the whole, retains them against his will.
nam propius est, ut cum huiusmodi incommodis mandatum suscipi possit praestarique officium et in partibus emendis perinde atque in toto debeat ab eo, qui tale mandatum sua sponte suscepit.
For it is more reasonable that a mandate can be undertaken with disadvantages of this kind, and that the duty ought to be performed by him who voluntarily undertook such a mandate in buying the shares just as in the whole.
§17.1.36.3Quod si mandassem tibi, ut fundum mihi emeres, non addito eo, ut non aliter mandato tenear, quam si totum emeres, et tu partem uel quasdam partes eius emeris, tum habebimus sine dubio inuicem mandati actionem, quamuis reliquas partes emere non potuisses.
But if I had commissioned you to buy a tract of land for me, without adding that I am not otherwise bound by the mandate than if you bought the whole, and you bought a share or certain shares of it, then we shall without doubt have a mandate action against each other, although you could not buy the remaining shares.