The treatment contract as an innominate service contract to which the respective provisions on mandate apply

Studia Prawa Prywatnego | 02/2019
DOI: 10.32027/SPP.19.2.3
Witold Borysiak

The first ever treatment contracts were signed soon after the medical profession was established. Since the profession was practised by various people, some of them slaves, the contracts were, naturally, signed between various sorts of entities and their contents varied widely.1 Under Roman law, a medical doctor’s work was performed on the grounds of a contract of mandate (mandatum) or, sometimes, under a contract of work2 (locatio conductio operis).3 Treatment contracts would more often take the form of a contract of mandate because it relied on mutual confidence between the parties, and usually underlay freelance work done by professionals versed in prestigious arts requiring a considerable intellectual input (tzw. operae liberales).4 This reflected the nature of relations existing between a patient and his doctor. Although those agreements provided for no payment, a doctor could be remunerated in an amount commonly accepted at the given time and by the particular community.5 Payment was considered as an expression of gratitude rather than a fee for the service rendered.6 Nevertheless, the ancient law envisaged claiming such royalties in a procedure known as cognitio extra ordinem,7 and whenever the parties agreed in advance that the service would be provided for payment, their agreement would acquire the form of a contract on hiring labour. Solutions created under Roman law had an influence on the development of the issues discussed here back in the pre-codification era.8 Agreements with medical doctors were qualified as unpaid mandate contracts, though the person ordering a medical service was allowed to pay a royalty to the doctor as the party that agreed to provide the service.9 This contradiction was usually solved either by qualifying payment-envisaging agreements into the category of labour hiring contracts, or by placing an emphasis on that type of royalty, which was not meant to be a fee, but rather a way of honouring the doctor’s service or an expression of gratitude for the same.10 Nowadays, most European legal systems qualify agreements on providing medical services as civil law contracts.11 A few legal systems qualify it as a nominate contract (e.g. Germany,12 the Netherlands13 and the Czech Republic14). In most other legal systems, a treatment agreement is qualified into the category of service contracts close to an mandate contract (Belgium,15 Spain16 and Portugal17; this qualification was also prevalent in German literature and jurisprudence before 201318), or into the category of the contract of mandate (Swiss law19) or a fee-for-task contract on hiring labour (this opinion is sometimes chosen by French law).20 In some other legal systems, the doctrine and judicature do not make it clear whether an agreement on providing medical services should be qualified as a work contract, a service agreement, or a special innominate contract sui generis (as is the case in Austrian21 and Greek law, for example).22