There is no particular form or manner of entering into the Contract of Mandate, prescribed either by the common law or by the civil law, in order to give it validity. – Upcounsel
We’ve been studying the basics of Judicial and/or Legislated Mandate (Type A), and Contract of Mandate (Type B). And interestingly enough even a third philosophically driven (Type C) which emanates from not only the Jurisprudence of (Type B), but simply from the social pathology of a civilized Society.
(Type A) Judicial and/or Legislated Mandate: A Judicial command or precept issued by a court or magistrates, directing the proper officer to enforce a judgment, sentence or decree. Legislate: to perform the function of legislation (i.e., to make or enact laws), to mandate, establish, or regulate by or as if by legislation.
(Type B) Contract of Mandate: A bailment of personal property, in regard to which the Bailee engages to do some act without reward; A bailment of goods without reward, to be carried from place to place, or to have some act performed about them; When one undertakes, without recompense, to do some act for the other in respect to the thing bailed. There is no particular form or manner of entering into the contract of mandate, prescribed either by the common law or by the civil law, in order to give it validity. It may be verbal or in writing; it may be expressed or implied; it may be in a solemn form or in any other manner. The contract may be varied at the pleasure of the parties. It may be absolute or conditional, general or special, temporary or permanent.
We’ll first address Judicial (and Legislated) Mandates with a few simple examples: We The People are required to stop at stop-signs because of a Mandate that is accompanied by Law. We The People have Free and Equal Access to Opportunity of Employment based on a Legal Mandate. We The People have the Right to Free Speech because of a Mandate that is accompanied by a Constitutional Law.
A Contract of Mandate (separate from any Judicial decision or Congressional Legislation) is a mutual agreement and/or contract that two parties voluntarily make where one party is likely to receive no benefit from the agreement. It generally stems from an informal agreement that possesses just enough formality to possibly be presentable in Court if the need ever arises throughout the duration of the Contract.
A valet may be the best example of “a bailment of goods”, as the owner still possesses their car but the valet holds it for a time without benefit and may be liable for negligent damages. Another good example is if a person (bailee) checks out a book from the library (bailor) for an allotted time, as the library has no real benefit to lending the book, plus the bailee of the property may be held liable for negligent damages.
To bring this discussion full circle let’s relate our now brief understanding of Mandates to the Covid19 Mask Debate. For example: In California, the Governor has issued, or as he likes to say, Mandated, a “Mask Order”. It is not (as of yet) a Judicial or Legislated Mandate (Type A). Governor Newsom’s “Mask Guidance” (as it’s technically phrased) is combined with Public Health Orders which aren’t exactly clear when it comes to healthy individuals under non-Legislated, Adjudicated, or Contractual Mandates. Further, Governor Newsom has not participated in Contract of Mandate (Type B) with each Citizen in the State of California over a bailment of physical property. Thus, at best, the Governor’s “Guidance” falls into a pseudo-category of “Voluntary Societal Mandates” (Type C). Which are, as of yet, unenforceable by Law. This is the main reason why many County Sheriffs in California will not enforce the “Mask Order“. As a “Guidance” isn’t the same thing as a Mandate accompanied by Law or Contract.
Undoubtedly, our Elected Officials have significant Powers during a State of Emergency. Therefore, we must ask: If this pandemic really is this bad then why isn’t the President, our Governors, or our Congressional Representatives at the State and Federal levels using their Emergency Powers to invoke Mandated Law? Simply put, the main reason people in California still refuse to wear a mask is because these Mandates have not been Adjudicated, Legislated, or Contracted. Simple as that.