Real Contracts

The group of contracts known as real contracts derived their binding force, not from the observance of any form, but from some act or fact. They were essentially contracts of an equitable nature, and were introduced by the praetor, though probably by a modification of earlier forms of contract.

There were two classes of real contracts, nominate or named, and innominate or nameless real contracts. There were four nominate real contracts, or as they were usually called, simply real contracts: (1) Mutuum, (2) Commodatum, (3) Depositum, and (4) Pignus.

The general ground of obligation in these contracts was the delivery of property by one person to another under conditions making it the duty of the person receiving the property to return either the identical property, or (in the case of mutuum) other property of the same kind. It was the delivery of the thing (res, whence the name real) that imposed upon the person receiving it the duty to return it.

The history of these contracts is obscure. They appear to have been derived from earlier formal contracts, but in the form in which they have come down to us they were introduced by the prsetor. Except mutuum, they were bona fidei negotia, and both parties were bound to do not only what they expressly agreed, but also whatever was required by good faith. Mutuum, however, was a contract stricti juris.

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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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