Transfer or Assignment of Obligations

Under the Jus Civile obligations were not assigna- ble. This is, the creditor could not directly transfer tO' an- other his right against the debtor. But by the use of a mandate he could indirectly accomplish this result. The creditor, in addition to giving the intended transferee a com- mission to sue as the creditor's agent or attorney (procurator) for the amount due, would agree further that he might re- tain the amount recovered as his own. This was called a mandatum in rem suam and the mandatary was called a procurator in rem suam. Instead of acting as attorney for the creditor, he was, in effect, attorney for himself. The suit was brought in the name of the original creditor, but the judgment was rendered in favor of the transferee. Thus, suppose Titius, having a claim against Gains, wished to transfer it to Maevius. He would give Maevius authority to sue Gains in his (Titius) name. The formula in the ac- tion would read thus : "If it appears that Gains owes Titius 10 aurei, then let the judex condemn Gains to pay 10 aurei to Maevius." (Gaius, IV, 86.)

This form of mandate, like any other, was revocable by the original creditor, or by his death, up to the time of bring- ing the suit (litis contestatio). Until the suit was brought, there was no direct relation between the transferee of the claim and the debtor. But after the suit was brought the transferee was a party to the action, and had control thereof — he became dominus litis — and the original creditor could not revoke the mandate. This was true of any procuratorial mandate.

There was no difference in the formula employed, or in its outward effect generally, between a mandate in rem suam and any other procuratorial mandate. In either case, the- mandatory was, as to the debtor, not a creditor, but merely the procurator of the original creditor. The only difference was that the procurator in rem suam was not bound to hand over to the mandator the amount recovered from the debtor.

This mode of transfer, which involved the actual bringing of suit on the claim before the transfer became effective, was obviously cumbersome, and unsatisfactory. And in course of time it became a rule of law that a mandatum in rem suam should be irrevocable from the moment notice thereof was given to the debtor, and not simply from the time suit was brought. From the time of notice, then, the mandatary in rem suam had a right to claim payment from the debtor. The assignment was thus accomplished not by the actual bringing of the suit, but by authorizing a suit to be brought and giving notice to the debtor. Finally, the praetor com- pleted this cause of development by doing away altogether with the necessity for the mandate in rem suam, and recog- nizing assignments in any form, whether by sale, gift, or otherwise, in which the intention to assign was manifested. The praetor granted to the assignee an action said to be founded on utility (actio utilis), the precise form of which has not come down to us, in which the assignee sued in his own name. The consent of the debtor was not necessary to the validity of the assignment, but he was not bound by the assignment until notified thereof. If, without having re- ceived notice, he paid the original creditor, he could not be required to pay again to the assignee. And after notice the debtor could not pay the original creditor.

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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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