theory. Accordingly, I wish in this Introduction and Lecture to call attention to Sohm (and others) as forerunners of Nazi law. Sadly, legal education may have an impact on real life. At the end of the Lecture I stress, on authority for the transformation of law rather than for the creation of fresh law, that its impact is not just on theoretical issues but also on practical law. I choose to mention the Roman law of damage to property, a topic to which I return in Lecture. The issue is a general one, and I could have chosen many other examples of transformation. The borrowed law is much changed, but the old law retains an unnecessary impact. A prime example is the Roman contract of mandatum, mandate, and mandat in the French code civil of . The Roman contract of mandatum was elegantly constructed.3 It was a consensual contract in which one party agreed to do something gratuitously for another. That no reward was intended was an essential necessity for the contract.4 If a money payment was intended, the contract was locatio conductio, hire, unless the arrangement involved an ars liberalis, a liberal art, in which case there was no contract. If a reward was intended but not in money there was again no contract but the action called condictio might be permitted if one party had performed his share. The code civil which is very confused, turns matters on its head. Thus, article reads: “Mandate is gratuitous, unless there is agreement to the contrary,” The Belgian E.R.N. Arntz comments: “Mandate is gratuitous by its nature but is not essentially so as in Roman law. The authors of the code understood that in the state of our society and our habits, very different from that of the Romans, mandate is more often remunerated than gratuitous, and that the remuneration is a suitable indemnity for the work and loss of time.”5 The survival of mandat as a 3 D. 17.1. 4 Matters were somewhat changed when the action to or against the procurator became the actio mandati. 5 Cours de Droit Civil Français, 4, 2d ed. (Brussels, Paris, 1880), 155.
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