TITLE XII.

OF COMMISSION, AUTHORITY, OR POWER OF ATTORNEY

(MANDAMIENTO).

CAP. 1. A COMMISSION (mandamiento) is a contract of [186] good faith, by which one person commits to the gratuitous charge of another his affairs, and the latter accepts the charge. It may be advantageous to the constituent alone, to a third person, or to the principal jointly with a third person,1 Ll. 20. and 21. tit. 12. P. 5. [LI 25. and 21. tit. 12. P. 5.] in as much as the two kinds mentioned in L. 22. tit. 12. P. 5. [L. 22. tit. 12. P. 5.] are more in the nature of a debt with interest (al credito con interes), and that in L. 23. Ibid. [L. 23. tit. 12. P. 5.] is reduced to simple advice or counsel. From this we derive two principles: 1st, That this contract is perfected by mutual consent. 2d, That in it the faith or friendship of the party is particularly considered.

From the first principle, it is inferred, 1st, That the commission may be amongst absent persons by letters (cartas), and messengers (mensageros), limited, or for a certain time, under condition, &c., L. 24. tit. 12. P. 5. [L. 24. tit. 12. P. 5.] 2d, That the ratification has the force or effect of a commission (mandato); e. g. if one without the order of another shall recover and pay his debts, and the latter shall subsequently approve of it, L. 32. tit. 12. P. 5. [L. 32. tit. 12. P. 5.] 3d, That the mandamiento is at an end, by the dissent of the parties, by renunciation,3 and by the death of the mandator or of the mandatee.

1 Or, says Palacios, to the mandator and the mandatee, or to the mandatee and a third person, or to the mandatee alone. There are the kinds which are pointed out by Ll. 22. and 23. tit. 12. P. 5., which properly belong to this title, although that mentioned in L. 23. is, as the authors say, more advice or counsel, than commission; on account of which the adviser is not bound or liable for any thing, unless the advice should have been given with an evil design (con mala intencion), and any injury should result to the person advised; for in this case the adviser would be obliged to pay. See Wood's Inst. C. L. book 3. ch. 5. p. 242. and 243.

2 Or general, special, or absolute. See L. 24. tit. 12. P. 5. cited.

3 Palacios says, there is no royal law or statute which declares that the commission is put an end to or dissolved, by the renunciation of the mandatee, and if attention is paid to the words of L. 20. tit. 12, P. 5.; for if the mandatee receives or undertakes the commission, who is obliged to fulfil it, we should say, that the mandatee cannot renounce it; and more so, if to this is added L. 1. tit. 1. lib. 10. Nov. Rec. [L. 2. tit. 16. lib. 5. Rec.] Perhaps the Learned Professor's objection may be obviated by saying, timely renunciation. L. 20. tit. 12. P. 5. adds, that if he who receives, id est, undertakes a commission, is guilty of any fraud in not fulfilling the commission, or if by his fault (culpa), any damage results to the mandator, the mandatee is liable for it. And Greg. Lop. Gl. 5., same law, says, that this liability is for the smallest (levissima) fault or neglect. It is to be recollected, that the commission must be undertaken gratis. The notions of friendship are, perhaps,

From the second principle it is deduced, 1st, That the mandatee ought not to exceed the limits of his authority which are expressed in the power. 2d, That the mandatee has his action to recover the expenses which he has incurred on account of the mandator, L. 25. tit. 12. P. 5. [L. 25. tit. 12. P. 5.]

Cap. 2. Here belongs also the voluntary attorney, or negotiorum gestor of the Romans; that is, one who takes charge of other persons' business without the knowledge of the owner.

Hence arises this axiom: That the owner or principal remains obliged by a consent presumed from the advantage which he derives. From this we infer, 1st, That if any one, without an authority or commission (mandato), administers, improves, and benefits the property of an absent person, he may recover the expenses from the owner, to whom he shall be obliged to give a just or perfect account of all that has been done by him, Ll. 26. and 31. tit. 12. P. 5. [Ll. 26. and 31. tit. 12. P. 5.] 2d, The same is understood of the expenses incurred on the property of a minor (huerfano), except with [187] respect to those which are not permanent, which the minor is not obliged to pay, L. 28. tit. 12. P. 5. [L. 28. tit. 12. P. 5.] 3d, That although a person with a bad intention laid out expenses on the property of another, from which it derived benefit, he may retain for them; but not for those from which utility resulted to the property," L. 29. tit. 12. P. 5. [L. 29. tit. 12. P. 5.] 4th, That the administrator of another's property, is obliged to pay the injury (los perjuicios) occasioned by his fault or fraud, unless it be, that finding the property entirely abandoned, he was desirous of administering it out of pure compassion, L. 30. tit. 12. P. 5. [L. 30. tit. 12. P. 5] 5th, That whoever intermeddles in the administration of the affairs of another without a commission (mandato), only ought to do that which the principal was accustomed to do; and, acting otherwise, he shall be responsible for the damages which he might occasion, L. 33. tit. 12. P. 5. [L. 33. tit. 12. P. 5.] 6th, That if any one, out of charity, un

not carried in modern times to that exalted or refined pitch they were wont to be among the Romans, and the considerations suggested by this note may induce great caution in respect of undertaking such an office or duty.

L. 23. tit. 12. P. 5. says, that if the expenses laid out on the property of a minor of 14 years should be necessary, the voluntary attorney who incurred them ought to recover them from the minor; but that if such expenses or outlays should appear useful at first, and it should afterwards turn out they were not so, the tutor under whose tutelage the minor should be, is bound to pay them. In the instance hitherto put in the text, buena fe is considered to have actuated the negotiorum gestor.

5 Not those it should be, observes Palacios, from which utility did not result to the property.

Palacios observes, that L. 30. tit. 12. P. 5. cited, does not make this exception; but what it says is, that if prejudice or injury to the proprietor should be occasioned by fraud, the administrator, in every such case, is bound to make it good, even though he be a person who administered from pure compassion; and that Greg. Lop. Gl. 3. on the same law, adds, this last perpon is also obliged to make good that occasioned by his gross fault, (culpa lata); which also accompanies or is compared with fraud.

7 Whether occasioned by his fault, or by casual or unforeseen events, or in any way whatsoever. See L. 33. tit. 12. P. 5. cited.

dertakes the education and bringing up of any minor (huerfano), he cannot demand or recover the expenses which he shall have incurred by reason thereof, L. 35. tit. 12. P. 5. [L. 35. tit. 13. P. 5.;] excepting, if the mother, grandmother or stepfather, having under their power or care their children or grandchildren, &c., furnished them aliment, and educated or brought them up, protesting or declaring that they did it with the intention of being reimbursed from the minor's property, Ll. 36. and 37. tit. 12. P. 5. [Ll. 36. and 37. tit. 12. P. 5.]

Cap. 3. By Auto acordato of 5th May, 1766, cap. 7., [L. 1. tit. 18. lib. 7. Nov. Rec.,] it was ordered that every town (comun), or corporation (concejo), should elect every year a public procurator or attorney syndic (procurador sindico personero del publico), which ought to be done by the town (pueblo), being divided into districts or wards (barrios), as the instruction of 26th June of the same year, 1766, more fully provides; and inasmuch as in many towns the office of procurador syndic is sold (enagenado), or devolves by custom or by privilege upon a particular regidor of the cabildo, or the latter is accustomed to elect or propose him, it was ordered that in such towns the public should choose annually a procurador, Cedulas de 15th November, 1767. L. 3. tit. 18. lib. 7. Nov. Rec. These attorneys have their seat in the cabildo after the syndic, and the meetings with respect to the public granaries (de posito), with a right to ask and propose every thing which may appear conducive to the public benefit, but without a right of voting in the like way as the syndics, who have never enjoyed it, as may be seen more at large in the cedulas referred

to.

8 L. 37. tit. 12. P. 5., as regards stepfathers, says, that notwithstanding this declaration if the youth should be of an age to be serviceable to his stepfather, his services shall be an equivalent or compensation for the expense of maintaining him, but not for extraordinary expenses, or those incurred in the care, &c, of the youth's property; and that what is said in this law as to step-parents having charge, &c., of their step-children, is understood to apply to all persons having charge of other people's children.

TITLE XIII.

OF PURCHASE AND SALE, OR BUYING and selling (COMPRA Y VENTA).

CAP. 1. Or the contracts which are onerous to both [188] parties, the first is that of sale and purchase, or selling and buying. This contract is a sort of agreement which men make use of among themselves, and is made with the consent of both parties for a certain price which the purchaser and seller agree upon, L. 1. tit. 5. P. 5. [L. 1. tit. 5. P. 5.]

§ 1. From this definition it follows, 1st, That purchase and sale is perfect or complete by the consent of both parties. 2d, That every thing in commerce, or that is not prohibited, may be sold and purchased. 3d, That the price ought to be certain, just, and for money counted (en dinero contado.) 4th, That this contract is onerous to both parties.

From the first axiom it is deduced, 1st, That all those may sell and purchase, who may consent freely, L. 2. tit. 5. P. 5., [L. 2. tit. 5. P. 5.] whether by parol, by letter (carta), by messenger (mensagero), or by deed, LI. 8. and 48. tit. 5. P. 5. [Ll. 8. and 48. tit 5. P. 5.] 2d, That children under the paternal power cannot purchase, nor can merchants sell to them,2 L. 22. tit. 11. lib. 5. Rec., [L. 17. tit. 1. lib. 10. Nov. Rec.;] neither can students, L. 4. tit. 7. lib. 1. Rec. [L. 1. tit. 6. lib. 2. Nov. Rec.] 3d, that the son, can only sell to his father his property called castrense 6 quasi, L. 2. tit. 5. P. 5. [L. 2. tit. 5. P. 5.1 4th, That no person can be compelled to sell his property by force, unless public utility requires it, L. 3. tit. 5. P. 5., Gomez, lib. 2. var. res. cap. 2.3 5th, That for want of this free consent, guardians and executors cannot purchase any of the property which they administer, L. 23. tit. 11. lib. 5. Rec., [L. 1. tit. 12. lib. 10. Nov. Rec.,] unless a decree should be previously given by the judge, stating its advantage to the minor, L. 4. tit. 5. P. 5. [L. 4. tit. 5. P. 5.] 6th, That the sales made by the judges, compel- [ 189 ]

Who may bind themselves, and mutually contract with one another. See L. 2 tit. 5. P. 5. 2 Under the paternal power without consent of fathers; nor minors, without consent of guardian. See the law cited.

3 Numb. 51.

▲ Palacios, in a note on a former part of the text, Lib. 1. tit. 3. § 2., observes, that when L. 23. tit. 11. lib. 5. Rec. (L. 1. tit. 12. lib. 10. Nov. Rec.) prohibits the guardian from purchasing any thing belonging to the ward, it does not add that he may do it with the authority of the judge, and the consent of the co guardians, and that the interpreters dispute, whether by this law of the Rec. L. 4. tit. 5. P. 5. was repealed or altered, which, with the observance of these requisites, permitted the purchase. See Greg. Lop. Gl. 8, L. 4. tit. 5. P. 5., and Azevedo on L. 23, tit. 11. lib. 5. Rec. n. 3. 4. 5. 6.

VOL. I.-26

ling any person to purchase the property of delinquents, are null, L. 18. tit. 1. lib. 8. Rec. [L. 7. tit. 12. lib. 10. Nov. Rec.] 7th, That the sale made against one's will or consent, and through fraud or deceit on the part of the purchaser, is not valid,' L. 57. tit. 5. P. 5. [L. 57. tit. 5. P. 5.] 8th, That the sale made with another person's money is valid, except it be of persons privileged mentioned by L. 49. tit. 5. P. 5. [L. 49. tit. 5. P. 5.]

From the same it follows, 9th, That if the parties should disagree about the price or as to the thing sold, the sale is not valid; or if there should be a fraudulent error or mistake as to the material of which the thing is composed, as selling brass for gold,' &c. Ll. 20. and 21. tit. 5. P. 5. [Ll. 20. and 21. tit. 5. P. 5.] 10th, That this contract is perfect or complete as soon as the purchaser and seller are agreed upon the price of the thing, although no earnest money may have been paid nor given, L. 6. tit. 5. P. 5., and L. 2. tit. 16. lib. 5. Rec., [L. 6. tit. 5. P. 5. and L. 1. tit. 1. lib. 10. Nov. Kec.] in virtue of which last law, every obligation derives its force from mutual consent.

From the second action it is inferred, 1st, That there is no difference with respect to purchase and sale, whether the thing which is the object of it exists now, or may exist hereafter as the fruits of an estate; and if these shall not grow, the price shall be restored to the purchaser, unless they were purchased at a hazard (á la ventura); ex. gr. the first fish that is caught or killed, L. 11. tit. 5. P. 5. [L. 11. tit. 5. p. 5.] But if these fruits should be sold with the knowledge of the vendor that the thing sold would not produce them, although

6 Sale made through fear, force, or fraud. See Ll. 56. and 57. tit. 5. P. 5. Palacios says, if the sale is against will or consent, although without fraud or deceit, it is void; if with fraud or deceit alone, it is either void immediately, or may be prayed to be de clared void, or the price be either reduced to what is the just value, or the sale annulled. If fraud or deceit was the cause of the contract, and inducement to it, the contract is void. It may be prayed to be annulled or made void, if there should be any fault or defect in the thing sold, and the seller should not have manifested or pointed it out; in which case, the purchaser may return the thing, and demand back the sum paid for it (redhibitoria,) L. 65, tit. 5. P. 5., and it may be prayed, that the price be reduced to the just value, when there should have been deceit or lesion in more than half the just value; in which last case, the person deceived may pray, either that the sale be annulled, or be reduced to the just value (quanto minoris,) which shall be optional with the person guilty of the deceit, L. 56. tit. 5. P. 5. See the same stated in Wood's Inst. Civ. Law, book 3, chap. 5. p. 230.

6 Read purchase; and in such case, the property purchased belongs to the person by and in whose name bought, and not to the owner of the money, except the money belonged to knights in the court of the king, minors, or femme coverte, as dote and others, mentioned in L. 49. tit. 5. P. 5., cited.

7 Palacios says, if the error should be in the substance or body of the thing sold, whether it be fraudulently made or not, the sale is void, as may be seen by Ll. 20. and 21. tit. 5. P. 5., cited.

See Proclamation, Trinidad, 5th February, 1814, and Order in Council, 6th April, 1818, Appendix O. P. See also the distinction made by L. 6. tit. 5. P. 5., as to when it is contracted that the sale shall be by deed (carta,) in which case, the party may repent before the execution of the deed.

9 The text says "que existe, or ha de existir;" and see Greg. Lop. Gl. 1. and 2. on L. 11. tit. 5. P. 5., cited.