Mandate, a law term derived from the Roman civil law. It may be defined as a bailment (delivery) of a chattel or chattels to a person who is to do something with or about the things bailed, entirely without compensation. The essential element of the contract lies in the fact that there is not paid or promised, in law or in fact, any compensation whatever for the service to be rendered. The person delivering the chattels is called a mandator; and the person receiving them and undertaking the service is called a mandatary. As it must be a service or an act, the whole benefit of which rests with the mandator, this, by the ordinary principles of bailment, determines the amount of care to which the mandatary is bound, and the degree of negligence for which he is answerable. For negligence in a bailee has in law three degrees: slight negligence, which makes the bailee responsible where the bailment was wholly for his benefit; ordinary negligence, for which he is. responsible if the bailment be for the benefit of both parties; and gross negligence, for which only the bailee is responsible where the contract is for the exclusive benefit of the bailor.
And as it is not a mandate if the bailee derives any benefit whatever from the service, it follows that a mandatary is responsible for loss of or for injury to the thing delivered to him, only when it is caused by his gross negligence. - There is no especial form for the contract of mandate; it may be in writing or by word only, and made very solemnly or in the simplest way; in either case the law is the same. The mandator may recall the thing delivered at any time, und so rescind the contract. But if the nature of the contract be such that a mandatary has rendered the service in part, and will himself suffer detriment if it be not completed, the mandator cannot now rescind it without providing adequate indemnity to the- mandatary. When the contract is lawfully dissolved, the chattel must be restored to the mandator; but if indemnity be due to the mandatary, he would have a lien on the chattel to secure it. So, too, the contract would be dissolved by the death of the mandator or of the mandatary, or by any change in the state of the parties which from its nature should recall it, as by insolvency of either party, or insanity, or the marriage of a woman, or the sale of the property, or the termination of a guardianship on which the mandate rested.
But in all these cases there mast be the same exception as to a service partially rendered. So, too, it is believed that the mandatary may at his own pleasure terminate the contract; and as he may do this at any time, he may do it before he has begun to perform the service at all. But this very question has been more frequently and more elaborately discussed than any or all others which have arisen out of the contract of mandate. - Hunks and bankers are so far mandataries, that they receive notes for collection, and render, or engage to render, by agreement or by mercantile usage, these and similar services without any especial or specific compensation. But it i-understood that they do this as a part of their business, and for the general and indirect benefit they derive from doing it; and this is undoubtedly consideration enough to make them liable for any injury to their customer caused by their negligence; and it is sufficient to make them liable that their negligence was ordinary, or consisted in the want of common care - We have seen that a mandatary is, by law. liable only for gross negligence. But it is a voluntary contract, and the parties may vary it in any way, and make it more or less stringent, at their pleasure.
Where the parties enter into no specific stipulations, there the law sometimes varies their liabilities in aceorda: with the particular circumstances of tin Thus, it is an obvious principle that the mandator has no right to require any more skill or care than he has reason to expect. If an owner of a valuable chronometer carry it for repair to an ordinary watchmaker who does no business of this kind, and the instrument be injured in his hand because no more care and no better skill were applied to it than would suffice for ordinary watches, the owner baa no one to blame but himself; unless he can show that the watchmaker especially undertook be able to do the work required, and that the bailor had no means of knowing his incompetency On the other hand, if the owner intrusted his instrument to a person who was known to deal with those of like kind, who professed this as his business, and expressly or liv implication asserted himself to possess sufficient skill, this person would then be liable, as for gross negligence, if he did not possess the requisite skill, or did possess it but did not make use of it, although he was strictly a mandatary, and had undertaken the work gratuitously. Here, however, a distinction must be taken.
If a workman who is paid for his service asserts himself to have sufficient skill, he is liable for injury resulting from the want of that skill, although he does his best. But if he is not paid for his service and makes the same assertion, he is now not liable merely for the want of it unless he made the assertion fraudulently and knowing its falsehood; but, however honest, he is liable if, besides a want of skill, he has been guilty of negligence. - Mandates in the civil law were the orders of the high functionaries, as the consuls and proconsuls, and afterward the emperors, to subordinate officers, to instruct them as to the conduct they should pursue, either in general or in particular cases. At common law, the word mandate in a corresponding sense can hardly be said to be known. But it is sometimes used to signify an official command issued by a court, or a magistrate, or any tribunal having authority, in the form of a writ or precept. It is generally, if not always, confined to commands issued to an inferior court, to confirm or set aside a judgment, as by the supreme court of the United States to a circuit court, or to a proper officer, to enforce or execute a judgment, decree, or order.
When the command is issued to an individual who is a party before the tribunal, it is commonly known as an injunction, prohibition, or the like.