Loss of Family Rights

Severance from one's agnatic family operated as a loss of personality. The Roman family consisted of the ag- gregate of all those who were under the same paternal power, or would be thus subject if the common ancestor were still living, and this form of relationship (agnation), unlike the natural relationship of blood (cognation), could be changed.

One could sever his connection with his agnatic family, and in so doing he was said to suffer capitis deminutio minima, that is, the least degree of loss of personality recognized.

Such a change occurred where a woman married with manus, passing from her father's family into her husband's family; or where a father sold his son into bondage (mancipium), or gave him in adoption, or emancipated him; or where a person sui juris was arrogated (adopted); or where the child of a concubine was made legitimate by the intermarriage of his parents, thus passing from his mother's family into his father's family.

It will be observed that in some of these cases the condition of the person might have been actually improved, as in the case of the emancipation of a son who thus became sui juris, or of a bastard who was made legitimate.

There was usually merely a change from one family to another, new family rights being acquired in place of those lost. Nevertheless, any change was considered a loss of personality.

In addition to the loss of the old and the acquisition of new family rights, there were originally two other consequences of capitis deminutio minima:

  1. All contractual debts of the capite minutiis (person losing personality) were extinguished. But later the prsetor granted a remedy to creditors.
  2. Personal servitudes to which the capite minutus was entitled were extinguished. This rule was abolished by Justinian.

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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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