Literal Contract

In the time of Justinian there were no contracts that derived their legal force from the fact that they were in writing, or were written in any particular form. But during the Republic there existed a form of contract made in writing (literis) in the form of an entry in the account book (codex) of the creditor.

This form of contract probably originated in the importance attached by the Romans to their books of account. The Romans were great book-keepers. Every well-to-do Roman kept his domestic account books just as a modern business man keeps his business books. We are told that the censor, at the making of the census, required every citizen to take an oath that his books were accurately and honestly kept.

The literal contract consisted in an entry (expensilatio or nomen transscripticum) made by the creditor in his account book, with the consent of the debtor, to the effect that he had paid a certain amount to the debtor.

The debtor usually made a corresponding entry in his book that he had received the sum stated, but this appears to have constituted no part of the contract and to have been unnecessary. The debtor's liability depended upon the creditor's entry alone. This created the obligation, and was not merely the evidence of an existing obligation. It was the entry of a fictitious payment, but, of course, it doubtless represented some actual transaction not amounting in itself to a legal contract.

The exact details of this form of contract, how this particular entry differed from other entries in the account book, etc., have not come down to us. It is probable that the literal contract was usually employed, not for the purpose of originating an obligation, but of transforming an existing obligation, perhaps not in legal form, into a legal obligation based upon an entry in the account book.

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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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