The Law of Guardian and Ward

The Roman law included an elaborate system of guardianship. The power of a guardian was" a form of family power, which took the place of paternal power in cases in which there was no one to exercise the latter.

Guardianship was established in favor of persons who, although legally independent (sui juris), and hence not under potestas, were nevertheless under certain incapacities of fact or law which prevented them from being fully able to look after their own affairs. Such persons were (1) persons under age; (2) women; (3) spendthrifts; and (4) insane persons (lunatics).

The Roman law recognized two general types of guardianship, tutela and cura. Tutela was employed for two classes of persons :

( 1 ) persons under the age of puberty ; (2) women. Cura was employed for (1) persons above the age of puberty, and under twenty-five (piibes minores) ; (2) spendthrifts; and (3) lunatics.

Guardianship seems to have been originally in Rome an extension of the patria potestas both in the case of women and male children, and as to the latter is described by Sir Henry Maine, as being "a contrivance for keeping alive the semblance of subordination to the family of the parent up to the time when the child was supposed capable of becoming a parent himself."

The tutela, however, differed radically from the potestas in that, whereas the powers of the paterfamilias were in the nature of ownership, the powers of the tutor were given him in trust for the exclusive benefit of the pupiflus, and the tutor is not allowed to reap any personal advantage therefrom. The tutela was altogether for the benefit of the piipillus, not of the tutor.

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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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