[ULPIANUS libro trigensimo primo ad edictum. ] §17.1.6.prSi remunerandi gratia honor interuenit, erit mandati actio.
[ULPIANUS in the thirty-first book on the Edict.] If an honorarium is paid for the sake of rewarding, there will be an action of mandate.
§17.1.6.1Si cui fuerit mandatum, ut negotia administraret, hac actione erit conueniendus nec recte negotiorum gestorum cum eo agetur: nec enim ideo est obligatus quod negotia gessit, uerum idcirco quod mandatum susceperit: denique tenetur et si non gessisset.
If someone has been mandated to manage affairs, he must be sued by this action, and an action for management of affairs will not correctly be brought against him; for he is not obligated because he managed the affairs, but because he undertook the mandate; finally, he is liable even if he has not managed them.
§17.1.6.2Si passus sim aliquem pro me fideiubere uel alias interuenire, mandati teneor et, nisi pro inuito quis intercesserit aut donandi animo aut negotium gerens, erit mandati actio.
If I have permitted someone to guarantee for me or otherwise intervene, I am bound by the mandate; and unless someone has intervened for an unwilling person, or with the intention of making a gift, or managing affairs, there will be an action of mandate.
§17.1.6.3Rei turpis nullum mandatum est et ideo hac actione non agetur.
There is no mandate for an immoral matter, and therefore no action will be brought under this head.
§17.1.6.4Si tibi mandauero quod mea non intererat, ueluti ut pro Seio interuenias uel ut Titio credas, erit mihi tecum mandati actio, ut Celsus libro septimo digestorum scribit, et ego tibi sum obligatus.
If I mandate you to do something that is not of interest to me, for instance, to intervene on behalf of Seius or to lend to Titius, I will have an action of mandate against you, as Celsus writes in the seventh book of his Digests, and I am also obligated to you.
§17.1.6.5Plane si tibi mandauero quod tua intererat, nulla erit mandati actio, nisi mea quoque interfuit: aut, si non esses facturus, nisi ego mandassem, etsi mea non interfuit, tamen erit mandati actio.
Clearly, if I mandate you to do something which was in your own interest, there will be no action of mandate, unless it was also in my interest; or, if you would not have done it unless I had mandated it, even if it was not in my interest, there will nevertheless be an action of mandate.
§17.1.6.6Apud Iulianum libro tertio decimo digestorum quaeritur: si dominus iusserit procuratorem suum certam pecuniam sumere et faenerare periculo suo ita, ut certas usuras domino penderet dumtaxat, si pluris faenerare potuisset, ipse lucraretur, in creditam pecuniam uidetur, inquit, accepisse.
In Julian, in the thirteenth book of the Digests, the question is asked: if a principal orders his agent to take a certain sum of money and lend it at his own risk, on terms that he should pay only a fixed interest to the principal, and if he could lend it for more, he himself should profit, Julian says that he is considered to have received the money as a loan.
plane si omnium negotiorum erat ei administratio mandata, mandati quoque eum teneri, quemadmodum solet mandati teneri debitor, qui creditoris sui negotia gessit.
Clearly, if the administration of all his affairs had been mandated to him, he is also bound by the mandate, just as a debtor who has managed the affairs of his creditor is usually bound by the mandate.
§17.1.6.7Marius Paulus quidam fideiusserat pro Daphnide mercedem pactus ob suam fideiussionem et sub nomine alterius ex euentu litis cauerat sibi certam quantitatem dari: hic a Claudio Saturnino praetore maiores fructus inferre iussus erat et aduocationibus ei idem Saturninus interdixerat.
A certain Marius Paulus had acted as surety for Daphnis, having agreed upon a fee for his suretyship, and under another person's name had provided for a certain sum to be given to him from the outcome of the lawsuit; he had been ordered by the praetor Claudius Saturninus to pay higher fruits, and the same Saturninus had barred him from advocacy.
uidebatur autem mihi iudicatum solui fideiussisse et quasi redemptor litis extitisse et uelle a Daphnide mandati iudicio consequi, quod erat condemnatus.
Now, it seemed to me that he had guaranteed for the payment of the judgment and had stood out as a sort of contractor of the lawsuit, and wished to recover from Daphnis by the action of mandate what he had been condemned to pay.
sed rectissime diui fratres rescripserunt nullam actionem eum propter suam calliditatem habere, quia mercede pacta accesserat ad talem redemptionem.
But the deified brothers most correctly replied by rescript that he had no action on account of his craftiness, because he had entered into such a contract upon an agreed fee.
Marcellus autem sic loquitur de eo qui pecunia accepta spopondit, ut, si quidem hoc actum est, ut suo periculo sponderet, nulla actione agat, sin uero non hoc actum est, utilis ei potius actio competat: quae sententia utilitati rerum consentanea est.
Marcellus, however, speaks of one who promised on receiving money in this way: if indeed it was agreed that he should promise at his own risk, he can sue by no action; but if this was not agreed, an equitable action should rather be available to him; which opinion is agreeable to practical utility.