Agency

In the early Roman law of contracts the notion of agency was entirely lacking. Only the person who actually participated in the making of a contract was bound by it or could claim any rights under it. In later times the praetor, under the pressure of commercial necessity, created a law of agency closely resembling, in some striking examples, tjie modern law, but even down to the close of the Empire the law of agency in the modern sense was unknown to the Roman law. The Romans were very slow to grasp the principle of representation by an agent, and only in exceptional cases and in an imperfect manner was the principle recognized and applied.

It may strike one with surprise that the practical-minded Romans failed to develop a branch of law so indispensable in modern business life. For this failure two reasons may be assigned : In the first place, the rule that everything acquired by a slave or by a person under power belonged to the master or paterfamilias, removed to some extent the ne- cessity for a true law of agency. The master might send his slave, or the father might send his son, to make a contract, which would be made by the slave or son in his own name with the other party, and the benefit of the contract, as stated above, would accrue to the master or father. The slave or son was thus a sort of an agent, and it may be true that in English law master and servant are held to be one person "by a fiction which is an echo of the patria potestas" (Per Holmes, J., in Dempsey v. Chambers, 154 Mass. 330).

The second reason is that the strict formalism of the early law precluded the employment of agents in the making of contracts. The juristic acts of the early Jus Civile derived their legal force solely from their form, and these forms in very early times were highly ceremonial, and to a certain extent sacred or sacramental in character. It would have appeared incongruous to the early Romans for a person to acquire rights or incur liabilities by a ceremony or form to which he had not been a party. Hence all contracts had to be made personally.

It is impossible, however, in civilized society to get along without some form of agency. No man can do everything in person. And while the Roman law did not recognize agency in the modern sense, it did provide a fairly satisfactory substitute therefor. It approached, though it never fully reached, a true law of agency.

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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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