CHAPTER II.

CONTRACT BETWEEN PHYSICIANS AND PATIENTS, ITS NATURE, PREREQUISITES AND OBLIGATIONS.

§ 9. THE character of a professional service, whether in law or medicine is that of a mandate, and the obligations incurred under it, when no special contract has been entered into by the parties, belong to that class termed in the civil law quasi ex contractu. A mandate was in its nature always gratuitous, being founded in personal confidence. In this respect it differed from all other consensual contracts. Mandatum nisi gratuitum, nullum est.1 This is its very essence, for, if any compensation, either actual or prospective, enters into it, the contract would pass into one of hire. Yet if there was a mere honorary payment expected, not, strictly speaking as a compensation, but as a tribute of respect, the purity of the mandate was not affected thereby. Si remunerandi gratia honor intervenit, erit mandati actio. This being the mode of reward usually practiced towards lawyers and physicians, the quiddam honorarium became always an implied right possessed by them against clients and patients. And this right it will be seen could be enforced by an appropriate action, being considered as outside the sphere of a merely moral or imperfect obligation.

2

There has, indeed, been some conflict of opinion among authors, as to the true interpretation of the contract subsisting between lawyer and client, physician and patient. 'Pothier ad Pandect. lib. 17, tit. 1, n. 15.

2 Ibid.

The exalted character attached by the civil law to this class of services, which it regarded as strictly honorific, was adopted without modification by the common law, while no equal provision was made by this latter to secure a remedy for those services when unremunerated.1 The view taken by the Roman law belonged to an age when practitioners in either science were limited to men of wealth and leisure, since, in no sense did they practice these callings as the exclusive means of a livelihood. And in the law at least, the very nature of the relation between patron and client raised it above all taint of a mercenary character. But this extreme view of an honorific service was specially modified in the case of physicians, who, in this respect, were placed upon a better legal footing than lawyers. Their remedy could not be questioned by implication from the honorific nature of their employment, and means were furnished them for obtaining compensation without at the same time derogating from the dignity of their calling. A new action based upon the legal fiction of an implied promise, was invented for the purpose of meeting precisely such cases, and it is from overlooking the fact, that the mandate, although in its essence gratuitous, was not, when relating to professional services, necessarily a remediless contract, that some writers have felt constrained to convert it into a locatio operis in order to give it a standing in court.

Says Mr. Bell," "under this rule all professional men are comprehended. Their contract is locatio operarum, not mandate, and they, as well as smiths, farriers, bleachers and ordinary artists of all kinds, wherever they engage their services for hire, are responsible for the skill 1 Chorley v. Bolcot, 4 Term R. 317. Comment. Law of Scotland, p. 459.

and art necessary to accomplish safely what they under take, in so far as ordinary skill and art can accomplish it."

And Judge Bouvier adopts essentially the same view, in the words following:

"Under this rule, all professional men who can recover for their services in an action are included; their contract is locatio operarum, and not mandate."

§ 10. On the other hand, a directly opposite view is taken by some of the best civilians who have written in our language. Says Erskine :2

"But the honoraries of lawyers and physicians, though they may be sued for without a previous agreement, 1. 1, § 1, 10, 12 De Ext. Cogn., do not alter the nature of the contract from mandate to location; because they are, as Stair expresses it, the reward of services, which can receive no proper estimation, and therefore the action by which they are recovered is the actio mandati, not locati."

And before him, Stair3 thus expressed himself: "Yet honoraries or salaries for performing of things having no proper price or estimation, alter not the nature of this contract; as the salaries or honoraries of physicians for procuring of health, which hath no price, or of judges or advocates for giving or procuring of justice."

These views are further confirmed by a late, and most critical writer, as follows:

"But if there be a remuneration given or promised by way of honorarium, the contract is still mandate; such a remuneration differs from a hire, inasmuch as it is not an

1 Bouvier's Inst. vol. 1, 1004-5.

2 Insts. book 3, tit. 3, 8 32.

3 Stair's Inst. book 1, tit. 12, 5.

equivalent for the estimated value of the services, and it is merely collateral to the services rendered."

§ 11. It is true that the mandatary could not sue in an action mandati, because the implied promise of a reward was not considered an integral part of the contract. All rights and all remedies flowing out of a professional mandate, became, therefore, essentially modified by the original nature of the services rendered. Hence, though in strictness of construction gratuitous, because voluntary,2 there was nevertheless created a right to the recovery of a reward by an action extra ordinem. The payment of the honorarium could only be enforced per persecutionem extraordinariam, a form of action to which our common law action of assumpsit, with its quantum meruit count closely responds. And, although an exception to the strictly gratuitous character of a mandate was made in behalf of physicians, still they had no actio ex locato, and were compelled to resort to the form above stated. The fact can never be winked out of sight that even with the most utopian notions of the honor of a liberal profession, which any mention of a salary eo nomine would soil and disgrace, it was an established fiction of the civil law that the promise of an honorarium had always accompanied the mandate, and which promise created one of those obligations giving rise to an action quasi ex contractu.*

§ 12. But in our day, the increase in the number of professional practitioners, and their exclusive devotion to a special class of services as a means of living, has essentially modified the practical character of the contract with 'Bowyer's Modern Civil Law, p. 232.

2 Mandatum non suscipere cuilibet liberum est. Inst. lib. 3, 26, 11.

De Salario autem quod promisit, apud praesidem Provinciæ, cognitio

praebebitur. Code, 1. 4, tit. 35, 1.

43 Ortolan, Explicat. des Instituts. 1199,"tit. Des Obligations."

their patrons. Although in legal acceptation still a mandate, yet from force of circumstances belonging to an altered state of society, the mandate is practically changed into a contract of hire, (locatio operis). This, doubtless, reduces professions to the status of artisanship, and places them on a par with manual labor conjoined to the special skill of a particular calling. But it also simplifies the contract, removes it from the category of innominate, or imperfect obligations requiring the intervention of legal fictions to furnish a means for their enforcement, and brings it directly within the pale of consensual agreements based upon a sufficient consideration. Failure in either party to perform his share of the agreement, relieves the other of his analogous obligation, while, if any damage has accrued to the mandator from any malfeasance on the part of the mandatary, he has his right of action against him for the wrongs inflicted.

NON-OBLIGATION TO PRACTICE PROMISCUOUSLY.

§ 13. There is plainly no principle by which it is made incumbent upon physicians to attend upon whomsoever calls for their services, and thus to assume nolens volens the care of any case which offers itself. Indeed, the principle of a mandate would be violated by associating with it any idea of a compulsory rendition of services; and the language of the civil law is precise and conclusive upon this point. "Every one is free to refuse accepting a mandate, but if it is once accepted, it must be executed, or else renounced soon enough to permit the mandator executing it himself, or through another." Again, phy

'Mandatum non suscipere cuilibet liberum est, susceptum autem consummendum est, aut quam primum renunciandum, ut per semetipsum aut per alium, eandem rem mandator exequator. Inst. lib. 3, 26, 11.