[ULPIANUS libro trigensimo primo ad edictum. ] §17.1.8.prSi procuratorem dedero nec instrumenta mihi causae reddat, qua actione mihi teneatur? et Labeo putat mandati eum teneri nec esse probabilem sententiam existimantium ex hac causa agi posse depositi: uniuscuiusque enim contractus initium spectandum et causam.
[ULPIANUS in the thirty-first book on the Edict.] If I have appointed an agent and he does not return the documents of the case to me, by what action is he liable to me? Labeo thinks that he is liable under the action on mandate, and that the opinion of those who think that an action on deposit can be brought on this ground is not plausible; for in every contract, its beginning and cause must be regarded.
§17.1.8.1Sed et si per collusionem procuratoris absolutus sit aduersarius, mandati eum teneri: sed si soluendo non sit, tunc de dolo actionem aduersus reum, qui per collusionem absolutus sit, dandam ait.
But also, if the adversary has been discharged through the collusion of the agent, he is liable under the action on mandate; but if he is insolvent, then, he says, an action on fraud should be granted against the defendant who was discharged through collusion.
§17.1.8.2Sed et de lite quam suscepit exsequenda mandati eum teneri constat.
But it is also well established that he is liable under the action on mandate for carrying out the lawsuit which he has undertaken.
§17.1.8.3Si quis mandauerit alicui gerenda negotia eius, qui ipse sibi mandauerat, habebit mandati actionem, quia et ipse tenetur (tenetur autem, quia agere potest): quamquam enim uolgo dicatur procuratorem ante litem contestatam facere procuratorem non posse, tamen mandati actio est: ad agendum enim dumtaxat hoc facere non potest.
If anyone has mandated to another the management of the affairs of one who had mandated them to himself, he will have the action on mandate, because he himself also is liable (moreover, he is liable because he can bring an action); for although it is commonly said that an agent cannot appoint an agent before joinder of issue (litis contestatio), yet there is an action on mandate; for it is only for the purpose of bringing an action that he cannot do this.
§17.1.8.4Si tutores mandauerint contutori suo mancipium emendum pupillo et ille non emerit, an sit mandati actio, et utrum tantum mandati an uero et tutelae? et Iulianus distinguit: referre enim ait, cuius generis seruum tutores uni tutorum mandauerint ut emeret.
If tutors have mandated to their co-tutor to buy a slave for the pupil, and he has not bought him, is there an action on mandate, and is it only on mandate or also on tutelage? And Julian distinguishes: for he says that it makes a difference what kind of slave the tutors mandated to one of the tutors to buy.
nam si superuacuum seruum uel etiam onerosum, mandati actione tantum eum teneri, tutelae non teneri: si uero necessarium seruum, tunc et tutelae eum teneri non solum, sed et ceteros: nam et si mandassent, tenerentur tutelae, cur seruum pupillo necessarium non comparauerunt: non sunt igitur excusati, quod contutori mandauerunt, quia emere debuerunt.
For if it was a superfluous or even a burdensome slave, he is liable only under the action on mandate, and not under that on tutelage; but if it was a necessary slave, then not only is he liable under that on tutelage, but the others are as well; for even if they mandated it, they would be liable under tutelage for why they did not obtain a slave necessary for the pupil; therefore, they are not excused because they mandated it to their co-tutor, since they ought to have bought him.
plane habebunt nihilo minus mandati actionem, quia mandato non est obtemperatum.
Clearly, they will nonetheless have the action on mandate, because the mandate was not complied with.
contra quoque Iulianus ait tutorem qui emit mandati actionem habere aduersus contutores suos.
Conversely, Julian also says that a tutor who has bought has an action on mandate against his co-tutors.
§17.1.8.5Si liber homo, cum bona fide seruiret, mandauerit Titio ut redimeretur et nummos ex eo peculio dederit, quod ipsum sequi, non apud bonae fidei emptorem relinqui debuit, Titiusque pretio soluto liberum illum manumiserit, mox ingenuus pronuntiatus est, habere eum mandati actionem Iulianus ait aduersus eum cui se redimendum mandauit, sed hoc tantum inesse mandati iudicio, ut sibi actiones mandet, quas habet aduersus eum a quo comparauit.
If a free man, while serving in good faith as a slave, mandated Titius to redeem him and gave him money from that peculium which ought to have followed him and not been left with the purchaser in good faith, and Titius, having paid the price, manumitted that free man, and he was soon after declared freeborn, Julian says that he has an action on mandate against the person to whom he mandated his redemption; but that this is the only thing contained in the judgment on mandate, that he should mandate to him the actions which he has against the person from whom he purchased him.
plane si eam pecuniam dederit, quae erat ex peculio ad bonae fidei emptorem pertinente, nullae ei, inquit Iulianus, mandari actiones possunt, quia nullas habet, cum ei suos nummos emptor dederit: quinimmo, inquit, ex uendito manebit obligatus, sed et haec actio inutilis est, quia quantum fuerit consecutus, tantum empti iudicio necesse habebit praestare.
Clearly, if he gave that money which was from the peculium belonging to the purchaser in good faith, Julian says that no actions can be mandated to him, because he has none, since the purchaser gave him his own money; on the contrary, he says, he will remain liable under the action on the sale, but even this action is useless, because he will necessarily have to pay as much in the action on the purchase as he has obtained.
§17.1.8.6Mandati actio tunc competit, cum coepit interesse eius qui mandauit: ceterum si nihil interest, cessat mandati actio, et eatenus competit, quatenus interest.
The action on mandate lies when there begins to be an interest of the person who gave the mandate; but if there is no interest, the action on mandate does not lie, and it lies only to the extent that there is an interest.
ut puta mandaui tibi, ut fundum emeres: si intererat mea emi, teneberis: ceterum si eundem hunc fundum ego ipse emi uel alius mihi neque interest aliquid, cessat mandati actio.
As, for example, I mandated you to buy a tract of land: if it was my interest that it be bought, you will be liable; but if I myself bought this same tract of land, or another did for me, and there is no interest, the action on mandate does not lie.
mandaui, ut negotia gereres: si nihil deperierit, quamuis nemo gesserit, nulla actio est, aut si alius idonee gesserit, cessat mandati actio.
I mandated you to manage affairs: if nothing has been lost, although no one managed them, there is no action, or if another has managed them suitably, the action on mandate does not lie.
et in similibus hoc idem erit probandum.
And the same must be approved in similar cases.
§17.1.8.7Si ignorantes fideiussores debitorem soluisse uel etiam acceptilatione siue pacto liberatum ex substantia debitoris soluerunt, non tenebuntur mandati.
If guarantors, being ignorant that the debtor has paid or has even been released by formal release or agreement, have paid from the property of the debtor, they will not be liable under mandate.
§17.1.8.8Quod et ad actionem fideiussoris pertinet.
Which also pertains to the action of a guarantor.
et hoc ex rescripto diuorum fratrum intellegere licet, cuius uerba haec sunt: 'Catullo Iuliano.
And this can be understood from the rescript of the deified brothers, the words of which are as follows: "To Catullus Julianus.
Si hi, qui pro te 'fideiusserant, in maiorem quantitatem damnati, quam debiti ratio exigebat, scientes et pru- 'dentes auxilium appellationis omiserunt, poteris mandati agentibus his aequitate iudicis 'tueri te'. igitur si ignorauerunt, excusata ignorantia est: si scierunt, incumbebat eis necessitas prouocandi, ceterum dolo uersati sunt, si non prouocauerunt.
If those who had become guarantors for you, having been condemned to a larger sum than the account of the debt required, knowingly and intentionally omitted the remedy of appeal, you will be able to defend yourself by the equity of the judge when they bring the action on mandate." Therefore, if they were ignorant, their ignorance is excused; if they knew, the necessity of appealing was incumbent upon them, and otherwise they acted with fraud if they did not appeal.
quid tamen, si paupertas eis non permisit? excusata est eorum inopia.
But what if poverty did not permit them? Their lack of means is excused.
sed et si testato conuenerunt debitorem, ut si ipse putaret appellaret, puto rationem eis constare.
But also if they summoned the debtor before witnesses, so that he himself might appeal if he thought fit, I think their claim is established.
§17.1.8.9Dolo autem facere uidetur, qui id quod potest restituere non restituit: §17.1.8.10proinde si tibi mandaui, ut hominem emeres, tuque emisti, teneberis mihi, ut restituas.
Moreover, he seems to act with fraud who does not restore what he can restore; accordingly, if I mandated you to buy a slave, and you bought him, you will be liable to me to restore him.
sed et si dolo emere neglexisti (forte enim pecunia accepta alii cessisti ut emeret) aut si lata culpa (forte si gratia ductus passus es alium emere), teneberis.
But also if you neglected to buy through fraud (as, for instance, if having received the money you gave way to another to buy him) or through gross negligence (as, for instance, if being led by favor you allowed another to buy him), you will be liable.
sed et si seruus quem emisti fugit, si quidem dolo tuo, teneberis, si dolus non interuenit nec culpa, non teneberis nisi ad hoc, ut caueas, si in potestatem tuam peruenerit, te restituturum.
But also if the slave whom you bought has fled, if indeed through your fraud, you will be liable; if fraud did not intervene nor negligence, you will not be liable except to give security that, if he comes into your power, you will restore him.
sed et si restituas, et tradere debes.
But also if you restore him, you must also deliver him.
et si cautum est de euictione uel potes desiderare, ut tibi caueatur, puto sufficere, si mihi hac actione cedas, ut procuratorem me in rem meam facias, nec amplius praestes quam consecuturus sis.
And if security has been given against eviction or you can demand that security be given to you, I think it is sufficient if you cede to me under this action, so that you make me an agent in my own affair, and you do not perform more than what you are to obtain.