Agency of Persons Alieni Juris

The principal Roman substitute for agency is found in the Roman family law. The Roman law of agency may be described as an application of family law just as the English law of agency is an application or extension of the law of master and servant. It was the rule that all rights acquired by a person under the power of another (whether children in potestate, wives in manu, free persons in mancipio or slaves) belonged to the person in whose power he or she was.

The usual application of the rule was to acquisitions by slaves. The praetorian law greatly limited the rights of a paterfamilias in the acquisitions of his son. The principle that whatever a slave acquired he acquired not for himself but for his master, was not truly that of agency according to the English conception of representation. The master became the owner of property acquired by the slave, and the master, not the slave, could sue on the slave's contracts, but the master acquired his rights by operation of law and not by virtue of his having authorized the slave to act for him.

The same result would follow although the slave acted without the knowledge of his master, or even contrary to his express command. The slave was a mere "mechanical medium for transmitting rights, not an authorized agent to contract them." (Hunter, 611.) The acquisitions of a slave belonged to the master just as the increase of animals belonged to the owner of the animals.

By the Jus Civile the slave could only acquire rights for the master, he could not subject him to contractual liabilities. "Our condition can be made better by our slaves, it cannot be made worse," was the maxim of the law melior conditio nostra per servos fieri potest, deterior fieri non potest. (Dig. 50, 17, 133). A slave, therefore, could make only unilateral contracts for his master, not contracts involving reciprocal duties. He could stipulate for his master, but he could not buy or sell. This defect of the Jus Civile was remedied by the praetor, who gave two actions against a father or master on contracts made by a son or slave. These were the actio quod jussu where the contract was made by the order of the father or master, and the actio de in rem verso, where, with- out such authority, the contract was made for the benefit of the property of the father or master. The latter case included all reasonable and proper beneficial expenditure, such as for the repair of the father's or master's house, or the cultivation of his land, necessaries for sons or slaves (including the one making the contract), etc. In these two cases we find examples of a true agency; in the first case the son or slave acted with express authority, and in the second case with authority imputed by law. The contract was the contract of the father or master, who alone could sue or be sued on it ; the son or slave had no interest in it.

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Curators

By the Roman law a male became of age for all purposes upon reaching the age of puberty. Females, at least under the older law, never attained full legal capacity. Plainly, however, a law which gave to a boy of fourteen full power to manage his own affairs was unsafe for him, and modifications were introduced from time to time for his protection. By an early law of uncertain date passed for the relief of minors (le.r Plcetoria), they were permitted to apply to the prsetor for the appointment of a form of guardian known as a curator, who would be appointed on proof of the minor's incapacity to manage his own affairs. And in time it became the rule for magistrates to appoint a curator upon the minor's application. But a minor above the age of puberty could not be compelled to have a curator, except when, on being sued, he neglected or refused to apply for a curator, in which case a curator would be appointed on petition of the plaintiff to defend the suit. The du
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The Several Kinds of Tutors

(1) Testamentary Tutors. These were appointed by the will of the deceased paterfamilias of the pupil. This mode of appointment was authorized by the Twelve Tables. ( 2) Statutory Tutors. These succeeded to the tutela by virtue of the provisions of the Twelve Tables or of some other Statute, but only if there were no testamentary tutors. They were called legitimi tutor es. They were the agnates (by Justinian's legislation, the nearest of kin, whether agnates or cognates) who in case of the death of the pupil would succeed to his inheritance. They were appointed upon the principle that those who had the advantage of the inheritance ought to bear the burden of the tutela (ubi entolumentum successionis ibi et onus tutelcs). In this connection may be mentioned also the guardianship of the patron over his freedman, and of the father over his emancipated child. (3) In the absence of a testamentary or statutory tutor, power was ' given to certain magistrates to appoint
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Nexum

This was an ancient contract made by the ceremony of mancipation per aes et libram . Very little is known about it. Its application seems to have been very narrow, perhaps limited to the contract of loan. It was obsolete from a very early date.
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