Page:Halsbury Laws of England v1 1907.pdf/757

 — — Part

— Gratuitous Bailment.

11.

Sect.

2.

535

Mandate,

Sect.

2.

Mandate.

Sub.Sect. 1.—7;^ General

1088. Mandate, or mandatum, is another species of gratuitous Definition of It may be defined as a bailment of a specific chattel mandate. bailment. in regard to which the bailee engages to do some act without Here the safe custody of the chattel deposited is ancillary reward (s) to an undertaking by the bailee to do some act to it, or to perform some service in connection with it (t). Thus the great distinction between mandate and deposit is that the former lies in feasance and the latter in custody In this form of bailment confidence in the capacity, skill, and Considerahonour of the bailee duly to perform the act or employment undertaken by him, and not merely or chiefly his promise to safeguard the chattels while in his charge, constitutes the consideration moving the owner to deliver it over into his custody {x). An executory contract of mandate is not enforceable by law, for a person undertaking to })erform a vohmtary act is not liable if he neglects to perform it at all {a)..

1089.

the contract of mandate

If

is

contained in a written Ambiguous

instrument which is expressed in ambiguous terms, and the bailee is in fact misled and adopts one interpretation when the bailor intended him to follow^ the other, then the bailor will be bound, and the bailee will be exonerated {h). In the case of impossible undertakings the bailee is not liable, The impossibility must be absolute and not relative, mere difficulty in execution or the violation of trade custom not being sufficient ground for excusing non-performance when once the employment entered upon (c). contract of mandate for the performance of an immoral or illegal act cannot be enforced, as no Court will enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal. And it is immaterial whether or not the defendant has pleaded the illegality {d).

contract,

impossibility or difficulty contract,

is

A

Sub-Sect.

OUigations of the Mandatary.

2.

1090. The mandatary, equally with the depositary, is responsible to the bailor for any loss or damage to the chattel intrusted to And see Heinec, Pand., par. 3, lib. 17, Story on Bailments, s. 137. where Heinecciiis thus defines the contract " Mandatum (^a manus datione dictum), quod est contractus consensualis, bonse fidei quo alteri negotium gratis gerendum, comraittitur, et ab altero suscipitur." {t) Coggs V. Bernard (1703), 2 Ld. Kaym. 909, 918. (it) Jones on Bailments, p. 53. (x) Coggs v. Bernard, supra, at p. 919, and see Story on Bailments, s, 140 Pothier, Contrat de Mandat, c. 1. {a) Skeltonv. London and North Western Rail. Go. (1867), L. R. 2 C. P. 6'31,per WiLLES, J., at p. 636 Msee v. Gatward (1793), 5 Term Rep. 143, per Lord Kenyon, C.J., at p. 148 and see Goggs^y. Bernard, supra, at p. 919. (6) Story on Agency, s. 74. {s)

s.

230,









(c)

Tufnell

v.

& E. 798. McNab S Go., [1892]

Gonstahle (1838), 7 A.

{d) Scott V. Broivn, L.J., at p. 728, citing

Doermg,

Holman

illegality,

v.

2 Q. B. 724, per

Johnson (1775), Cowp. 341.

Lindley,

Obligations,