MANDATUM

Question 1

MANDATUM definition

Answer 1

the agent obliges himself gratuitously to perform a legal or factual transaction on behalf of the principal
(= no remuneration!!!)

Question 2

consensus and termination

Answer 2

mere consensus of the parties is how mandate comes into being
the contract can be resolved if the consensus between parties ceases to exist (termination - unilateral declaration)

Question 3

actions

Answer 3

• ACTIO MANDATI DIRECTA: the principal can demand that the agent carry out the mandate
• sometimes also ACTIO MANDATI CONTRARIA: the mandatarius may have a claim against the mandator

Question 4

which transactions can form the subject of a mandate?

Answer 4

a transaction which is in the joint interest of mandator and mandatarius

Question 5

indirect agency

Answer 5

mandates can also be used as indirect agency, e.g. purchase of an object by the mandatarius on behalf of the mandator (then, the mandatarius transfers possession and ownership by means of traditio)

Question 6

duties of the mandatarius

Answer 6

• conducting the transaction
• safeguarding the mandator’s interests
• secondary obligations: stem from bona fides, e.g. informing the mandator if the mandatarius is unable to perform his duties

Question 7

what happens if the mandatarius breaches bona fides while performing mandate?

Answer 7

he is liable for the resulting loss, especially if he didn’t perform tasks he would have been capable of performing
- if he causes damage to the mandator by breaching bona fides, he’s liable for the loss

Question 8

duties of the mandator

Answer 8

the mandator is supposed to recompense the mandatarius for losses and expenses incurred in the course of duty performing the mandate
- the losses have to be directly connected!
- e.g. if the parties don’t agree on renting a horse, the costs for the horse won’t be reimbursed

Question 9

principal’s liability of risk

Answer 9

the mandator is liable for losses incurred in direct connection with the mandate regardless of culpability. it’s explained with the fact that the mandatarius gratuitously acts on another’s behalf

Question 10

impossibiltiy of performance

Answer 10

a) NOT due to mandatarius’ fault - no liability, he’s entitled to reimbursment for expenses before the performance became impossible
b) when the mandatarius is able to perform but FAILS - he’s liable for the mandator’s interest

Question 11

MANDATUS MORTE SOLVITUR - what is it and which are the exceptions?

Answer 11

= the mandate ends with the death of one of the parties; contractual rights and duties are not transmitted to the heirs but there are exceptions:
- if the mandatarius incurred expenses, they should be reimbursed by the mandator’s heirs or if he gained something, it should be given up to the heirs
- if the mandatarius in bona fide carried out the duties because he didn’t know about the mandator’s death, he can be compensated for any costs and losses by ACTIO MANDATI CONTRARIA

Question 12

loan mandate

Answer 12

A (mandator) agrees that B (mandatarius) loans his own money in his own name to C - A is obliged to reimburse B for any losses he incurs if C is unable to pay back (similar to a guarantee)

Question 13

CESSIO

Answer 13

• transfer of the right to claim performance from the debtor to a new creditor
• only possible upon novation agreement between the new creditor and the debtor

Question 14

NOVATIO

Answer 14

• causes an existing contractual relation to be replaced by a new one
• the old one ceases to exist as well as all securities to it
• in the form of stipulation