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5) defines " Abalienatio " to be " ejus rei quae mancipi est;" and this is effected either by " traditio alteri nexu aut in jure cessio inter quos ea jure civili fieri possunt." According to this definition " Abalienatio " is of a Res Mancipi, a class of things determinate ; and the mode of transfer is either by " traditio nexu " or by " in jure cessio." These two modes correspond respectively to the " mancipatio " and " in jure cessio " of Gaius (ii. 41), and accordingly mancipatio or the older term mancipium is equivalent to "traditio nexu:" in other words mancipium was a nexus or nexum. Cicero (De Harusp. respons. c. 7) uses both words in the same sentence, where he speaks of various titles to property, and among them he mentions the Jus mancipii and Jus nexi. He may mean here to speak of the Jus mancipii in its special sense as contrasted with the Jus nexi which had a wider meaning ; in another instance he uses both words to express one thing. (Ad Fain. iv. 30.) According to Aelius Gallus, everything was " nexum'' " quodcunque per aes et libram geritur ;" and as mancipatio was effected per aes et libram,, it was consequently a nexum. The form of mancipatio by the aes and libra continued probably till Justinian abolished the distinction between Res Mancipi and Res Nee Mancipi. It is alluded to by Horace (Ep. ii. 2. 158), and the libra, s&ys Pliny (xxxiii. 3), is still used in such forms of transfer.
When things were transferred by mancipatio under a contract of sale, the v&ndor was bound to warranty in double of the amount of the thing sold. (Paul. S. R. ii. s. 16.) A vendor therefore who had a doubtful title would not sell by mancipium, but would merely transfer by delivery, and leave the purchaser to obtain the Quiritarian ownership of the thing by usucapion. (Plaut. Cure. iv. 2/9, Persa, iv. 3. 55.) Accordingly Varro observes (De Re Rustica, ii. 10) that if a slave was not transferred by mancipium, the seller entered into a stipulatio dupli to be enforced by the buyer in the case of eviction ; when the transfer was by mancipium, this stipulation was not necessary. The terms of the contract were called Lex Mancipii, but it is not necessary to infer from the passage of Cicero (De Or. i. 39), that the Lex or terms contained the penalty, but merely that it contained what the seller warranted. (See Pro Murena^ c. 2.)
It appears from what has been said that mancipium may be used as equivalent to .complete ownership, and may thus be opposed to usus as in a passage of Lucretius that has been often quoted (iii. 985), and to Fructus (Cic. ad Fain. vii. 29, 30). Sometimes the word mancipium signifies a slave, as being one of the Res mancipi: this is probably the sense of the word in Cicero (Top. 5) and certainly in Horace (Ep. i. 6. 39). Sometimes mancipia is used generally for Res mancipi (Ulp. tit. xi/27), unless Rem mancipi is the right reading in that passage. Mancipation no longer existed in the code of Justinian, who took away all distinction between Res Mancipi and Nee Mancipi. The ownership of all corporeal things was made transferable by Traditio with a justa causa.
The subject of Mancipium and Mancipatio is discussed by Corn. Van Bynkershoek, Opusculum de Rebus Maneipi et Nee Mancipi; and Puchta, Inst. ii. § 238. [G. L.j
MANDATI ACTIO. [mandatum.]
MANDATUM. It is a contract of mandatum when one person commissions another to do something without reward, and that other person undertakes to do it: and generally it may be stated that whenever a man commissions another to do something without pay, which, if the thing were to be done for pay (merces), would make the transaction a contract of locatio and conductio, the contract oi mandatum exists ; as if a man gives clothes to a fullo to be furbished up and cleaned, or to a tailor (sarcinator) to mend. The person who gave the commission was the manclans or mandator: he who received it, was the mandatarius. The mandatum might be either on the sole account of the mandator, or on another person's account, or on the account of the mandator and another person, or on account of the mandator and mandatarius or on the account of the mandatarius and another person. But there could be no mandatum on the account (gratia) of the mandatarius only ; as if a man were to advise another to put his money out to interest, and ii were lost, the loser would have no mandati actio against his adviser. If the advice were to lend the money to Titius, and the loan had the like result, it was a question whether this was a case of mandatum ; but the opinion of Sa-binus prevailed, that it was, and the mandant thus became .security for Titius. It was not mandatum if the thing was contra bonos mores, or in other words, if the object of the mandatum was an illegal act. A mandatum might be general or special ; and the mandatarius was bound to keep within the limits of the mandatum. The mandator had an utilis .actio against such persons as the mandatarius contracted with ; and such persons had the like action against ths mandator ; and a directa actio against the mandatarius. The mandator and mandatarius had also respectively a directa actio against one another in respect of the mandatum: the actio of the mandatarius might be for indemnity generally in respect of what he had done bona fide. If the mandatarius exceeded his commission, he had no action against the mandator; but the mandator in such case had an action for the amount of damage sustained by the non-execution of the mandatum, provided it could have been executed. The mandatum might be recalled by the mandang, or renounced by the mandatarius, " dum ad hue integra res sit," that is, no loss must accrue to either party in consequence of the contract being rescinded. The contract was dissolved by the death of either party ; but if the mandatarius executed the mandatum after the death of the mandator, in ignorance of his death, he had his action against the heres, which was allowed " utili-tatis causa." According to Cicero a mandati judi-cium was " non minus turpe quam furti " (Pro Rose. Amer. c. 38) ; which however would obviously depend on circumstances. [!nfamia.]
Mandatum is sometimes used in the sense of a command from a superior to an inferior. Under the empire the Mandata Principum were the commands and instructions given to governors of provinces and others. (See the letter of Plinius to Trajanus, and the emperor's answer, Plin. Ep. x. Ill, 112.) Frontinus (De Aquaeduct,.} classes the Mandata Principum with Lex and Senatuscon-sulta. (See Puchta, Inst. i. 110.)
(Gains, iii. 155—162, iv. 83, 84 ; Inst. 3. tit. 26 ; Dig. 17. tit. 1 ; Cod. 4. tit. 35 ;.Vangerow Pandekicn, Sec. iii. 469.) [G. L.j