Release

Releases were either formal or informal. The formal release belonged to the Jus Civile and the informal release to the praetorian law. It was a principle of the Jus Civile that a debtor could be released from his obligation only by a proceeding analogous to that by which he had bound himself. According to the older law, even payment or performance (which was sufficient under the praetorian law) did not discharge the debt unless the payment or performance was in due legal form. To constitute legal payment or performance, there must be not only the actual satisfaction of the creditor, but such satisfaction must be expressed in legal form. The actual payment or performance had to be accompanied by the formal legal discharge of the debtor. (Compare the old rule of the English law that a bond, an obligation under seal, could be discharged only by a release under seal.)

At a time when a contract derived its legal force from the observance of a form, it was not unreasonable that a corresponding form should be required to extinguish the con- tract. And as the extinguishment of the obligation was attributed to the formality employed and not to actual performance, it came about that in the Jus Civile of the classical period the formal modes of extinguishing contracts took the form of a mere fictitious or imaginary payment.

This formal discharge or release was by the use of a contrarius actus, or act reversing the prior act by which the obligation was created. Thus a contract created by mancipation was dissolved by a similar proceeding per aes et libram with contrary words; a contract by stipulation was dissolved by a contrary stipulation or acceptilation (acceptilatio) ; a contract formed by writing (expensum ferre) by a contrary entry of the money as having been received (acceptum ferre) or literal acceptilation. These formal methods of release amounted to an acknowledgment of a fictitious performance. Their efifect was to extinguish the obligation and release all sureties, pledges, etc.

As stipulation was the principal formal contract, acceptilation was the principal mode of release. The debtor asked the creditor "Do you regard as received that which I have promised you?" (quod tibi promisi, habense acceptum?), and the creditor replied "I do" (habeo). This very simple and convenient mode of releasing obligations was applicable only to contracts by stipulation. Other formal contracts must be released by their more cumbrous contrary forms. But by an ingenious application of the principle of novation, Aquilius Gallus, a colleague of Cicero, made acceptilation applicable to obligations of every sort. The obligation to be released was first reduced to the form of stipulation, and then released by acceptilation. The formula by which this was ac- complished, known as the Aquilian stipulation, is preserved in the Institutes (Inst. Ill, 29, 2). The consensual contracts were released by simple contrary agreement (Inst. Ill, 29, 4).

Informal Releases. The Roman law at first recognized only the formal release, but the praetor gave effect to an informal release or agreement not to sue by permitting the debtor to set up such release or agreement as a defense to an action on the debt. And in time such agreements or pacts (pacta de non petendo) practically superseded the formal release. The effect of the informal release was not, however, always as extensive as that of a formal release. The latter absolutely extinguished the debt for all purposes. If there were several codebtors, the release of one released all, a release of the principal debtor released the surety, and the release of the surety released the principal. But an agreement not to sue operated only to the extent of the creditor's intention. It might be made subject to conditions, or in favor of some parties and not of others. It was all a question of intention (Hunter, 642-645).

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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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