Die deutsche Mandatarhaftung: Probleme und Perspektiven aus einem historisch-systematischen Standpunkt

Abstract The liability of the mandatary in German law: problems and perspectives from a historical and systematic point of view. According to the German Civil Code, the mandate contract must be gratuitous. Due to this characteristic, the standard of care is not limited in any way. This article analyses the proposals for potential limitations of the standard of care in German doctrine and case law for situations where full liability is not considered equitable. The systematic position of § 662 BGB and the historical context of its enactment are then examined focusing on the influence of the pandectist scholarship. Finally, the results of most recent Roman law scholarship on the mandate contract and on criteria for the mandatary’s liability are proposed as a useful comparative model for the modern interpreter.