Discharge or Extinction of Contracts

The obligation of a contract might become ex- tinguished in several ways of which we will notice three, as follows: By (1) actual performance or its equivalent, (2) release by the creditor, and (3) prescription.

Every obligation might be extinguished by the actual performance due, or by the performance of something else in its place with the creditor's consent. It was immaterial who performed, whether the debtor himself, or someone else in his behalf; the debtor was released by performance by a third person, whether he knew of it or not, and even though performance was against his will (Inst. III, 29, 1). This was in accordance with the principle that one might enrich, though not impoverish, another without his consent (Dig. 46; 3, 23; 53; Dig. 3, 5, 39). Performance by a third person, however, had to be in the name and on account of the debtor. And where the nature of the obligation rendered performance by a third person impossible, as in the case of contract for personal services, performance by a third person, unless accepted by the creditor, did not discharge the debt (Dig. 46, 3, 31).

Performance by the debtor released both himself and his sureties, and, conversely, performance by a surety released both the surety and the principal debtor (Inst. III, 29, 1).

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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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