Legal Object of Contract of Sale

The real object of every sale in Roman law, as well as in any other law, was to transfer the ownership of the thing sold, but by an anomaly of the Roman law, this was not what the seller contracted to do. His agreement was to deliver the undisturbed possession (tradere vacuam possessionem) of the thing to the buyer, not to confer title. The delivery of the possession would, indeed, pass the title if the seller was the owner but even if the seller was not the owner, so that delivery could not pass title, yet he performed his contract if he delivered the property.

It is suggested that this anomaly in the Roman law of sales grew out of the fact that there were many persons in Roman society, for example, the peregrini or aliens, who were incapable of owning property, though they might enjoy possessory rights therein, and this limitation of the scope of the contract of sale was introduced so as to render these persons competent to participate in the making of these contracts. (Hunter, 369; Sohm, 399.)

Where the seller was not the owner, the sale, of course, did not pass title, for no one is able to transfer to another a greater right than he himself has (nemo plus juris ad alium transferre potest quam ipse haberet. Dig. 1, 17, 54; City Bank v. Barrow, 5 App. Cas. 677), and in such case the pwner of the property could recover it from the buyer. The latter, however, was not without remedy against the seller. The seller was bound to give undisturbed possession to the buyer and to compensate him in case of his eviction by law for any ground existing at the time of the sale, that is, his duty consisted in giving present possession and compensation in the event of future eviction.

This warranty against eviction might be embodied in an express agreement, in which case the damages were usually fixed at twice the purchase price; or it might, at least in later times, be implied, in which case the buyer was entitled to actual compensation for his loss. The express agreement or stipulation for damages for eviction, being a penalty, was construed strictly; the implied warranty, being an obligation of good faith, was construed more liberally and in the spirit of the contract of sale.

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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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