The Powers and Duties of Tutors

The duties of the tutor with respect to the care and management of the child's property were substantially those of an English trustee. Generally, he was required to administer the property of the pupillus as a prudent man would do, and if in consequence of the tutor's deliberate disregard of duty (dolus), or want of due diligence (culpa lata aut levis) the pupillus suffered loss or failed to gain an advantage that could, with due diligence, have been obtained for him, the tutor must make good the loss. And the tutor could not be released from responsibility even by an express clause in the will appointing him, for the tutela was a public office, the duties of which could not be modified by private arrangements.

A child under the age of puberty possessed very little legal capacity, even though sui juris in the sense of not being under power. He could not bind himself by contract, and there were some legal transactions, as acquiring an inheritance, which even though they might be wholly beneficial to him, required the authority of a tutor to be effective.

The child, even though he had no property, had need of a tutor to supply the requisite legal force to certain juristic acts. And while still an infans, that is, before he had completed his seventh year, the child could not bind himself by contract, even with his tutor's authority.

The general rule was that a child over seven and under the age of puberty might better his condition, even without the authority of his tutor, but he could not make it worse without such authority. Thus in contracts creating obligations on both sides, such as sales, letting to hire, or deposit, if the tutor did not give his authority, those contracting with the child were bound, but the child was not in turn bound to them. No pupillus of either sex could dispose of any of his property without the tutor's authority, though property could be conveyed to pupils of either sex without such authority.

In certain cases, even though for his own benefit, the pupil could not act without the consent of his tutor. Thus he could not, without his tutor's authority enter on an inheritance, demand the possession of goods, or accept an inheritance by way of trust, even though such act was advantageous to him and involved no chance of loss. Ordinarily, however, the assistance of the tutor was required only where the effect of the act was to alienate property or to impose a liability.

But although a pupil could not bind himself by contract to a third person without the consent of his tutor, this rule was subject to certain equitable restrictions in favor of the other party. The pupil could not keep what he had bought and refuse payment, nor demand back what he had sold without returning the purchase money.

The consent of the tutor to the transaction was required to be given at the time of the transaction, but was not necessarily in any particular form. In giving or withholding his consent the tutor was bound to act solely with a view to the advantage of the pupil, and to act with due prudence.

If he gave his consent improperly he was responsible to the pupil for any resulting loss. If the child was still infans (under seven) the tutor acted on behalf of the child (exercising the right of gestio), but if the child was over seven, the child himself acted, with the assistance of the tutor.

In giving his consent the tutor was not regarded as making the contract for the child ; the child was regarded as the contracting party, but he was not bound by the contract unless the tutor consented. Actions brought by or against a pupil under seven were brought or defended by the tvitor in his own name; but if the pupil was over seven the suit was brought or defended in the pupil's name with the tutor's consent.

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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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