Duress and Fraud

The formal contracts of the Jus Civile derived their legal force from the exact performance of their respective forms. Of course the parties must have consented to observe these formalities, but it was the form, not the consent, that gave binding force to the contract.

Hence formal contracts were binding by the Jus Civile if made in proper form, even though procured by force or fraud. But in later times the praetor allowed either duress or fraud to be set up as a defense to an action on the contract. The informal contracts, being Bona fide contracts were not binding if made through fear or induced by fraud.

Duress. The duress might take the form of violence (vis) or of intimidation (metus). Violence was the actual exercise of superior force; intimidation was the employment of threats of evil sufficient to overcome the resolution of a person of ordinary firmness. It was immaterial whether the duress was exercised by the other party to the contract or by a third person. In either case it constituted a good defense. Thus a promise extorted by a threat of death or bodily torment, or by confinement of the person, was voidable.

But duress did not invalidate a contract unless the duress was unlawful. Thus where a praetor, in the exercise of his lawful authority, required a defendant to promise to save his neighbor harmless if his house should fall to the injury of, the neighbor, by threat to give the house into the custody of the complainant, the promise was valid. But a promise of money extorted by a magistrate from an innocent person by a threat to condemn him to death, was not binding, this being an illegal exercise of power (Hunter, 593; Sohm, 209).

Fraud (Dolus). Unlike duress, the defense of fraud was available only when the fraud was perpetrated by a party to the contract. The fraud of a third person did not vitiate the contract, but the party defrauded had a right of action for the fraud (actio de dolo) against the perpetrator.

As in the case of English law, fraud in Roman law was a very comprehensive term, and seems to have been nowhfre precisely and accurately defined. It might consist either in the making of a false representation (suggestio falsi), or in the concealment of the truth (suppressio veri) (Hunter, 596-597; Sohm, 209).

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Effects of Marriage with Manus

By the strict marriage the wife passed into the marital power of her husband {in manum viri). The manus or marital power may be regarded as a particular form of the patria potestas. An uxor in manu was a member of her husband's household. Although called a materfamilias, this term did not have a meaning corresponding to the term paterfamilias. The wife was not the head of the family. She stood legally in the position of a daughter {in loco filiafamilias) of her husband. If she had children she was regarded as a sister of her own children. The relation of husband and wife, both as regards the wife's person and her property, was governed by the same rules of law as governed the relation of father and child. The law of husband and wife may, therefore, be considered as merely a particular branch of the law of parent and child. The husband had, in general, the same power over the person of his wife in manu as the father had over his child. Anciently, it may be suppo...
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Slavery by Birth

The children of a female slave became the slaves of her master. The status of the father as free or slave was immaterial. The general rule governing the determination of the status of a child, whether as free or slave, or as citizen or alien, was as follows : Children born in lawful wedlock had the status of the father at the moment of conception, children born out of wedlock had the status of the mother at the moment of birth. Hence if the father of a child of a lawful marriage was free at the moment of conception, the child was free although the father should subsequently lose his freedom. As to children born out of wedlock, the general rule, as above stated, was that it was the status of the mother at the moment of birth that determined the status of the child. If the mother was free at the moment of conception but a slave at the moment of birth, the child was a slave, and conversely. This was the earlier law, but the rule was modified in the interest of liber...
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Mandate (Mandatum)

Mandate (mandatum) was a contract by which one person mandatarius agreed to do something gratuitously at the request of another mandator , who, on his part, agreed to save him harmless from all loss in so doing. The mandator was said to give the mandatory a mandate, or commission to do the act in question. The term mandatum is sometimes translated "agency", but this translation is misleading. The mandatory is not properly described as an agent. Mandate was the only gratuitous consensual contract; the others, sale, hiring, and partnership, all being founded upon a consideration. Like the others, it was a bona fidei negotium , and bound the parties to do all that was required by good faith. It was of the essence of the contract of mandate that the mandatory should act gratuitously. But while this was true in a strict legal sense, it was allowed to agree upon a sum to be paid as a honorium , or salary, which might be recovered only by a special action and not b...
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