Effects of Free Marriage

The position of the wife under the free marriage was entirely different from that of the wife in manii. Instead of being practically the chattel or slave of her, husband she was his equal, and the marriage was essentially a partnership.

No doubt the actual position of the wife in manu assigned to her by social custom was far higher and easier than her legal position, as was the case of the English wife in the time of the English common law, but under the free marriage she was legally as well as actually substantially her husband's equal.

The wife did not by the marriage become a member of her husband's household nor become subject to his paternal power. She remained a member of her father's family. If sui juris before marriage, she remained so, and if under her father's power, she likewise so remained, except that the patria pofestas had to give way where it conflicted with such marital power as accompanied even the free marriage.

This marital power consisted in the husband's right to companionship of his wife, and the right to decide all questions of domestic policy. He had the right to determine the matrimonial domicile, and the wife's legal domicile was that of her husband. He had also the right to determine the nature and extent of the household expenditure and also the education of the children.

The husband even under the free marriage was the head of the family and the wife occupied a position of subordination, but a very different kind of subordination from that of the children or of the wife in manu.

The free marriage did not affect the property rights, personal liabilities, nor contractual capacity of the wife. Her antenuptial rights and liabilities remained solely hers after the marriage.

Whatever she owned at the time of the marriage, or acquired afterwards in any manner, was her separate property. Her capacity for acquiring and holding property and for incurring liabilities was unaffected by the marriage.

The husband might manage her property as her agent, but otherwise had no sort of legal control over or right to it. In the free marriage the property of both husband and wife remained unaffected by the marriage both during their joint lives and also after the death of either of them. There was not even the right of mutual succession except, in later times, to a very limited extent.

There were three respects in which the property and personal relations of husband and wife were affected by the free marriage:

( 1 ) the husband was bound to defray all house- hold expenses, including the support of the wife. This rule was substantially affected by the custom of giving a dos.

(2) Mutual gifts between husband and wife were void, and property given by either spouse to the other might be recovered back any time by the donor, but if the donor died without exercising this right, the surviving donee might retain the property.

(3) Husband and wife could not sue each other for theft. But if either spouse committed a theft in view of a divorce, the other party might recover compensation in a special action granted by the praetor.

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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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