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Chapter Summary

Gai., 3.161 is situated in the part on the law of obligations and, more precisely, in the part on mandatum, which covers Gai., 3.155-162. In a contract of mandate, the mandatary binds himself to undertake a gratuitous service, which has been requested from him by the mandator. Such a contract is based on the consent of the contracting parties. Gaius first discussed the case of a mandatary who exceeded the terms of the mandate although it had been possible to perform it within its limits. The Sabinians added that the mandatary should not have an actio mandati contraria up to the fixed price. Although the Proculian argumentation is not explicitly mentioned in the sources, it goes almost without saying that they made use of the same argument as the Sabinians: 'In maiore minus inest', but they applied it in a different way.

Keywords: actio mandati contraria; Gaius; mandatum; Proculians; Sabinians



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