Hire of Services or Work

This was the case where one person hired another to perform certain services or do certain work. There were two cases; one where the hirer employed the other to perform services not in respect to a particular thing, such as the services of domestic servants, laborers, clerks, etc., and the other where a person was hired to do work upon a particular thing, such as to repair a coat, make a ring, or carry goods. In such case the agreement was not to supply the hirer with a certain amount of labor, but with the result of labor.

( 1 ) The first class of contracts was called locatio-conductio operarum. The employer was called the conductor operarum and the servant or employee the locator-operarum. The subject-matter of this contract must always consist of services of the inferior sort (opera illiberales) not requiring special skill, and reducible to a money value. The services of a lawyer, physician, teacher, mandatory, and the like, were deemed of too high a sort to be debased by being made the subject-matter of trade. They were (in theory) beyond money valuation.

(2) The second class of locatio-conductio was called loccutio-conductio operis. Here the contract was to do certain work upon or in respect to a particular thing. The employer in this case was called, not the conductor, as in the former case, but the locator, and the person employed was the conductor. The nomenclature of the jurists is here somewhat confused, they having apparently followed the analogy of a letting for use in which the bailor is the locator and the bailee is the conductor (see Hunter, 511). Thus the laundress who washes the clothes, or the carrier who carries the goods or the jeweller who repairs a ring, was the conductor, while the owner was the locator.

It may be noted that the Roman jurists, like our own, experienced some difficulty in distinguishing between a sale and a contract for work. Thus if a goldsmith agreed to make out of his own gold a ring for Titius, and received ten aurei therefor, it was disputed whether this was a contract of sale or of hire. One authority (Cassius) held that it was both a sale of the material and a hiring of the labor. But it was finally determined to be a sale. But if Titus provided the gold or simply agreed to pay for the work, it was a contract of hire (Inst. III, 24, 4).

The workman was bound to do his work with reasonable care and skill, and take good care of the thing entrusted to him. If it was lost, destroyed, or injured, through his negligence or want of skill, he was responsible, but not otherwise. Thus, if a precious stone was sent to a lapidary to be cut or set, and the lapidary broke the stone in doing so, he was liable if the fracture was due to his want of skill, but not if due to a flaw in the stone. So, if one agreed to carry an article for hire, and it was lost or injured, the carrier was liable if the loss was due to his fault, but not otherwise.

(The Roman law did not make the distinction made in English law between a common carrier (liable as insurer) and a private carrier.)

(As to contracts of hire, see generally Gaius, 3, 142-147; Inst. III, 24; Hunter, 505-514; Sohm, 404)

.

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...
Read more

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...
Read more

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...
Read more