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Fundamina

On-line version ISSN 2411-7870
Print version ISSN 1021-545X

Abstract

VAN DEN BERGH, Rena. A rule must arise from the law as it is - and it is not cast in stone. Fundamina (Pretoria) [online]. 2014, vol.20, n.2, pp.965-972. ISSN 2411-7870.

In this article, two of the original requirements for a contract of mandate are discussed, namely that it be gratuitous and that the mandatory was only liable for dolus. The requirement that it had to be gratuitous was a rule that was generally applicable in practice and later accepted as law. Indeed, the mandatory initially performed the mandate gratuitously, but mandates gradually came to be performed by professional people who were often given an honorarium or some other form of payment for the services they had rendered. It was considered a matter of aequitas that professionals, learned and experienced men, could not deliver such services without reward. This naturally influenced the mandatory's liability: at a time when he was not paid, he was only liable for dolus. However, once the mandatory started being remunerated, it was considered only fair that his liability should increase, and he was then also held liable for culpa levis. This was considered to be justifiable in the light of the concept of aequitas, which was not only a philosophical conviction, but a real legal principle that had a positive influence on Roman law. From the above it follows that the rules discussed in this article arose from the law as it was, and that it was the influence of aequitas that caused it to change with the times so as to remain just and fair.

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