Innominate Real Contracts or Nameless Contracts

In addition to the four named real contracts just discussed, another class of contracts also considered as real contracts became actionable at a later period, to which the Romans gave no name but which are now known as innominate or nameless real contracts, or simply nameless contracts. They consisted essentially in the exchange of performance and counter-performance.

The principle upon which they were enforced was that wherever there were mutual promises of performance and one party had done what he had agreed to do, he had the right, on the ground of such performance, to exact performance by the other party of his part of the agreement.

The mere exchange of mutual promises did not give rise to any legal obligation. Except in the case of the four so called consensual contracts, the Romans did not recognize contracts based upon mere agreement, or the exchange of promise for promise. It was only when one party had performed his promise that he had any right of action against the other party. After one party had performed it would be inequitable to permit the other party to refuse counter-performance. The principle is analogous to that of the English so-called doctrine of part performance in the law of specific performance of contracts, though the Romans had no such remedy as specific performance, and the only remedy in case of non performance Was an action for the breach.

It is only by analogy that the innominate contracts may be called real contracts; the rendering of performance corresponds more or less closely with the delivery of the thing (res) in the true real contracts.

As the nature of the acts to be respectively performed by the parties might vary indefinitely, no attempt was made to give these contracts any fixed name, and they are now known simply as the nameless contracts.

But although without special name, these contracts are comprehended in the well-known formula of Paul, as follows :

Either, I give you something in order that you may give me something (do tibi, ut des) or, I give you something in order that you may do something for me (do ut facias) ; or, I do something for you in order that you may give me something (faci ut des) ; or, I do something for you in order that you may do something for me (facio ut facias) (Dig. 19, 5, 5).

The above formula may be summed up by saying that the nameless contracts consisted in the exchange of either a thing for a thing, a thing for an act, or an act for an act. The contract of exchange more properly so-called, that is the exchange of a thing for a thing, was much like a sale, which, however, was a consensual contract while an exchange was not.

A mere agreement to exchange had no binding force until one of the parties had given what he promised. Then the other party became bound to deliver the thing which he had promised in exchange. Another difference from sale was that in exchange both parties were bound to give good title, and hence an exchange by one not the owner of the property was void.

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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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