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The general rule of the Roman law concerning advice or recommendation is
"nemo ex consilio obligatur", no one incurs an obligation as the result of giving
advice. The person to whom the advice was given is not mandatary. It is a question of the mandatum tua
gratia, and this type of the mandate is not binding because it is a simple
advice. It does not impose a legal obligation, and no one incurs an obligation as the result of giving
advice. The person to whom the advice was given is free to decide and to
ascertain, whether or not to follow that advice according to his own
discretion, and whether advice is at his advantage. For that reason a person who gives advice to another one is not legally bound and responsible for any damage resulting from following bad advice or
recommendation. Even if the advice was not in the best interest of the person to whom it was
given, a person who gives advice to another is not liable to recompense him for any
loss. The mandatum tua gratia is
supervacuum and needless because that is the mandate in the sole interest of the
mandatary, and a mandate cannot validly be concluded wholly in the interest of the
mandatary. Exceptionally, a person to whom the advice or recommendation was
given, could demand the compensation for damage, loss or expense arising from
that.
This liability can arise from a contract or delict.
The advice cannot be fraudulent. If bad faith and chicanery intervene, there is an action for fraud
(actio doli). In this case a person who gives bad advice is liable for
fraud. This person can be liable for the advice which is based on the contractual
relationships; through mandatum or stipulatio he takes the responsibility for the
risk.
Key words:
liability, advice, Roman law.
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