The Law of Obligations

An obligation in Roman law was a duty which one person owed to another or the right which that other had to the performance of that duty. As the etymology of the word indicates from ob - about and ligo - bind, an obligation is a bond binding two persons together. It is the basis, or rather the correlative, of a right in personam.

The essence of an obligation is that it binds one person to give something to or to do something for another. In the classical period of Roman law an obligatory right was the right to require another person to do some act which was reducible to a money value.

The term obligation was used in Roman law in a wider sense than in modern law in that it denoted not only the duty but also the right. It applied to the person who enjoyed the right as well as to the person who was subject to the duty.

As contrasted with ownership (doiminium), which might be asserted against all the world, an obligatory right (a right in personam) might be asserted against the debtor alone. It was simply the right to require a particular person to act in a particular way.

The parties to an obligation were called creditor (creditor), the party entitled to performance, and debtor (debitor), the party from whom performance was due. These terms were originally confined to the case of loans, but were afterwards extended to denote the parties to any obligation.

The relation of creditor and debtor, unlike the family relations, did not produce or imply the personal subordination or subjection of the debtor to the creditor.

The creditor had no general power of control over the acts of the debtor, but merely a right to require him to do some particular act. And the acts that could be thus required were confined to acts reducible to a money value, though the particular act might be the delivery of property or the performance of some work or service, as well as the payment of a sum of money.

The debtor could always get rid of or discharge himself from the obligation by surrendering a corresponding portion of his property to his creditor. The obligation was a deduction from the debtor's property merely, and not from his liberty.

.

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...
Read more

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...
Read more

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...
Read more