The contract of mandatum in Roman law, unlike its namesake in modern civil law legal systems, was not a contract of representation or agency. It was a contract of gratuitous performance of services for others. According to Corpus luris Civilis it was a contract which drew its origin from the duties of friendship. This paper examines certain rules of mandatum and compares them with a similar legal institution known as procuratio and concludes that friendship must indeed have been the origin of the contract. The paper then examines various aspects of friendship in Roman society, and concludes that social custom cannot have been the sole basis for the creation of the contract. The philosophical and ethical views of Cicero and Seneca are then considered. From the works of these two authors two lines of thought regarding friendship are deduced: friendships are to be entered into for their own sake, or friendships are to be entered into for the benefits that will ensue. The former is the 'noble' view of friendship, the latter the 'utilitarian'. The author concludes after a reexamination of the rules of mandatum that the 'noble' view provides a better answer to the question of why mandatum was created by the Roman jurists.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:QMM.22578 |
| Date | January 1994 |
| Creators | Deere, Andrew G. (Andrew Graham) |
| Contributors | Silverthorne, Michael J. (advisor) |
| Publisher | McGill University |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Format | application/pdf |
| Coverage | Master of Arts (Department of Classics.) |
| Rights | All items in eScholarship@McGill are protected by copyright with all rights reserved unless otherwise indicated. |
| Relation | alephsysno: 001449239, proquestno: MM05375, Theses scanned by UMI/ProQuest. |
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