Pacts

Except in the case of the consensual contracts, the Roman law never recognized a mere oral promise or agreement as amounting to a contract in the full legal sense. To be binding, the promise must be expressed in a certain form, as in the case of the verbal contracts, or have induced performance, as in the case of the nameless contracts. Nevertheless, mere informal promises or agreements were not entirely without legal efifect. As a rule they were not directly enforceable by actions, but they were available as defenses.

These agreements were called pacts (pacta). Agreements enforceable by action were called contracts (contractus). As early as the Twelve Tables an informal agreement to waive an action for a tort (delict) was held binding, and constituted a good defense to the action. Afterwards the prastor admitted pacts as defenses to actions on contracts as well as on delicts.

A contract could not, strictly speaking, be discharged except in its own appropriate manner. A contract made per aes et libram could be discharged only in the same way; a stipu- lation by a stipulation, and a literal contract by a writing. In law a verbal release or discharge from a formal contract was a nullity. But where a contract had in fact, though informally, been released, the prsetor, acting upon equitable principles, permitted the debtor, if sued on the contract, to plead the informal release as a special defense (exceptio pacti conventi). The contract was not technically extinguished unless the formal mode of release was employed. It would still support an action. But this action could be defeated by the equitable defense of an informal release.

The result of this innovation by the prsetor was" to do away with the necessity for formal releases of formal contracts, and substitute therefor the informal release by pact. A pact not actionable was called a nudum pactum a term which is employed in English law in a very different sense, to denote an agreement not supported by a valuable consideration.

The Roman maxim was Nuda pactio obligationem non parit, sed parit exceptionem (Dig. 2, 14, 7, 4).

A pact differed from a stipulation only in form. Both were 9ral promises, but the promise by stipulation was required to be in answer to a question, while the pact was not. Pacts of the kind just described gave rise to a natural obligation (naturalis obligatio).

Pacta Adjecta. Pacts were also used in connection with contracts as collateral agreements annexing terms not included in the contract proper. These added pacts (pacta adjecto) were actionable. Thus if in a contract of sale a penalty was agreed upon for delay in performance, this penalty could be recovered in an action on the contract of sale.

These pacts were employed with contracts bona fidei, and perhaps to a limited extent with contracts stricti juris. In the case of contracts bons fidei, good faith, of course, required that the parties should perform whatever collateral agreements they made at the time of the contract. In early times these collateral agreements could be added only by stipulation, and were enforced in an action on the stipulation, but it was later held that all terms contemporaneously added to a contract bona fidei were a part of the contract and of equal validity with it, and could be enforced by the same action as the contract itself. To have this effect, the pacts had to be made at the time of the contract. Subsequent pacts modifying or varying the terms of the contract, or wholly or partially dissolving it, were available only as a defense to an action on the contract.

Special Pacts. In a very few cases pacts not collateral to any contract were made actionable by the prsetor or by imperial legislation. Two, the pact of hypotheca (mortgage) and the pactum de constituto (a form of suretyship), were due to the praetor, and two to the emperors. It was enacted in A. D. 428 that a mere agreement to give a dowry should be binding without any stipulation pactum de constituenda dote, and Justinian enacted that an informal promise to make a gift should be binding pactum donationis. In this enactment Justinian was probably largely influenced by his desire to give legal force to gifts for religious and pious uses. (As to pacts, see Hunter, 545-550; Sohm, 414.)

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Curators

By the Roman law a male became of age for all purposes upon reaching the age of puberty. Females, at least under the older law, never attained full legal capacity. Plainly, however, a law which gave to a boy of fourteen full power to manage his own affairs was unsafe for him, and modifications were introduced from time to time for his protection. By an early law of uncertain date passed for the relief of minors (le.r Plcetoria), they were permitted to apply to the prsetor for the appointment of a form of guardian known as a curator, who would be appointed on proof of the minor's incapacity to manage his own affairs. And in time it became the rule for magistrates to appoint a curator upon the minor's application. But a minor above the age of puberty could not be compelled to have a curator, except when, on being sued, he neglected or refused to apply for a curator, in which case a curator would be appointed on petition of the plaintiff to defend the suit. The du
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The Several Kinds of Tutors

(1) Testamentary Tutors. These were appointed by the will of the deceased paterfamilias of the pupil. This mode of appointment was authorized by the Twelve Tables. ( 2) Statutory Tutors. These succeeded to the tutela by virtue of the provisions of the Twelve Tables or of some other Statute, but only if there were no testamentary tutors. They were called legitimi tutor es. They were the agnates (by Justinian's legislation, the nearest of kin, whether agnates or cognates) who in case of the death of the pupil would succeed to his inheritance. They were appointed upon the principle that those who had the advantage of the inheritance ought to bear the burden of the tutela (ubi entolumentum successionis ibi et onus tutelcs). In this connection may be mentioned also the guardianship of the patron over his freedman, and of the father over his emancipated child. (3) In the absence of a testamentary or statutory tutor, power was ' given to certain magistrates to appoint
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Nexum

This was an ancient contract made by the ceremony of mancipation per aes et libram . Very little is known about it. Its application seems to have been very narrow, perhaps limited to the contract of loan. It was obsolete from a very early date.
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