Part 17 (1/2)
t.i.tLE XXVI. OF AGENCY
Of the contract of agency there are five modes. A man gives you a commission either for his own exclusive benefit, or for his own and yours together, or for that of some third person, or for his own and the third person's, or for the third person's and yours. A commission given simply for the sake of the agent gives rise in reality to no relation of agency, and accordingly no obligation comes into existence, and therefore no action.
1 A commission is given solely for the benefit of the princ.i.p.al when, for instance, the latter instructs you to manage his business, to buy him a piece of land, or to enter into a stipulation as surety for him.
2 It is given for your benefit and for that of your princ.i.p.al together when he, for instance, commissions you to lend money at interest to a person who borrows it for your princ.i.p.al's benefit; or where, on your wis.h.i.+ng to sue him as surety for some one else, he commissions you to sue his princ.i.p.al, himself undertaking all risk: or where, at his risk, you stipulate for payment from a person whom he subst.i.tutes for himself as your debtor.
3 It is given for the benefit of a third person when, for instance, some one commissions you to look after t.i.tius's affairs as general agent, or to buy t.i.tius a piece of land, or to go surety for him.
4 It is for the benefit of the princ.i.p.al and a third person when, for instance, some one instructs you to look after affairs common to himself and t.i.tius, or to buy an estate for himself and t.i.tius, or to go surety for them jointly.
5 It is for the benefit of yourself and a third person when, for instance, some one instructs you to lend money at interest to t.i.tius; if it were to lend money free of interest, it would be for the benefit of the third person only.
6 It is for your benefit alone if, for instance, some one commissions you to invest your money in the purchase of land rather than to lend it at interest, or vice versa. But such a commission is not really so much a commission in the eye of the law as a mere piece of advice, and consequently will not give rise to an obligation, for the law holds no one responsible as on agency for mere advice given, even if it turns out ill for the person advised, for every one can find out for himself whether what he is advised to do is likely to turn out well or ill.
Consequently, if you have money lying idle in your cashbox, and on so and so's advice buy something with it, or put it out at interest, you cannot sue that person by the action on agency although your purchase or loan turns out a bad speculation; and it has even been questioned, on this principle, whether a man is suable on agency who commissions you to lend money to t.i.tius; but the prevalent opinion is that of Sabinus, that so specific a recommendation is sufficient to support an action, because (without it) you would never have lent your money to t.i.tius at all.
7 So too instructions to commit an unlawful or immoral act do not create a legal obligation--as if t.i.tius were to instigate you to steal, or to do an injury to the property or person of some one else; and even if you act on his instructions, and have to pay a penalty in consequence, you cannot recover its amount from t.i.tius.
8 An agent ought not to exceed the terms of his commission. Thus, if some one commissions you to purchase an estate for him, but not to exceed the price of a hundred aurei, or to go surety for t.i.tius up to that amount, you ought not in either transaction to exceed the sum specified: for otherwise you will not be able to sue him on the agency.
Sabinus and Ca.s.sius even thought that in such a case you could not successfully sue him even for a hundred aurei, though the leaders of the opposite school differed from them, and the latter opinion is undoubtedly less harsh. If you buy the estate for less, you will have a right of action against him, for a direction to buy an estate for a hundred aurei is regarded as an implied direction to buy, if possible, for a smaller sum.
9 The authority given to an agent duly const.i.tuted can be annulled by revocation before he commences to act upon it.
10 Similarly, the death of either the princ.i.p.al or the agent before the latter commences to act extinguishes the agent's authority; but equity has so far modified this rule that if, after the death of a princ.i.p.al and without having notice of his decease, an agent executes his commission, he can sue on the agency: for otherwise the law would be penalizing a reasonable and unavoidable ignorance. Similar to this is the rule, that debtors who pay a manumitted steward, say, of t.i.tius, without notice of his manumission, are discharged from liability, though by the strict letter of the law they are not discharged, because they have not paid the person whom they were bound to pay.
11 It is open to every one to decline a commission of agency, but acceptance must be followed by execution, or by a prompt resignation, in order to enable the princ.i.p.al to carry out his purpose either personally or by the appointment of another agent. Unless the resignation is made in such time that the princ.i.p.al can attain his object without suffering any prejudice, an action will lie at his suit, in default of proof by the agent that he could not resign before, or that his resignation, though inconvenient, was justifiable.
12 A commission of agency may be made to take effect from a specified future day, or may be subject to a condition.
13 Finally, it should be observed that unless the agent's services are gratuitous, the relation between him and the princ.i.p.al will not be agency proper, but some other kind of contract; for if a remuneration is fixed, the contract is one of hiring. And generally we may say that in all cases where, supposing a man's services are gratuitous, there would be a contract of agency or deposit, there is held to be a contract of hiring if remuneration is agreed upon; consequently, if you give clothes to a fuller to clean or to finish, or to a tailor to mend, without agreeing upon or promising any remuneration, you can be sued by the action on agency.
t.i.tLE XXVII. OF QUASI-CONTRACTUAL OBLIGATION
Having enumerated the different kinds of contracts, let us now examine those obligations also which do not originate, properly speaking, in contract, but which, as they do not arise from a delict, seem to be quasicontractual.
1 Thus, if one man has managed the business of another during the latter's absence, each can sue the other by the action on uncommissioned agency; the direct action being available to him whose business was managed, the contrary action to him who managed it. It is clear that these actions cannot properly be said to originate in a contract, for their peculiarity is that they lie only where one man has come forward and managed the business of another without having received any commission so to do, and that other is thereby laid under a legal obligation even though he knows nothing of what has taken place. The reason of this is the general convenience; otherwise people might be summoned away by some sudden event of pressing importance, and without commissioning any one to look after and manage their affairs, the result of which would be that during their absence those affairs would be entirely neglected: and of course no one would be likely to attend to them if he were to have no action for the recovery of any outlay he might have incurred in so doing. Conversely, as the uncommissioned agent, if his management is good, lays his princ.i.p.al under a legal obligation, so too he is himself answerable to the latter for an account of his management; and herein he must show that he has satisfied the highest standard of carefulness, for to have displayed such carefulness as he is wont to exercise in his own affairs is not enough, if only a more diligent person could have managed the business better.
2 Guardians, again, who can be sued by the action on guardians.h.i.+p, cannot properly be said to be bound by contract, for there is no contract between guardian and ward: but their obligation, as it certainly does not originate in delict, may be said to be quasicontractual. In this case too each party has a remedy against the other: not only can the ward sue the guardian directly on the guardians.h.i.+p, but the guardian can also sue the ward by the contrary action of the same name, if he has either incurred any outlay in managing the ward's property, or bound himself on his behalf, or pledged his own property as security for the ward's creditors.
3 Again, where persons own property jointly without being partners, by having, for instance, a joint bequest or gift made to them, and one of them is liable to be sued by the other in a part.i.tion suit because he alone has taken its fruits, or because the plaintiff has laid out money on it in necessary expenses: here the defendant cannot properly be said to be bound by contract, for there has been no contract made between the parties; but as his obligation is not based on delict, it may be said to be quasicontractual.
4 The case is exactly the same between joint heirs, one of whom is liable to be sued by the other on one of these grounds in an action for part.i.tion of the inheritance.