Notes on Roman Law

By arrogation the person arrogated (arrogatiis) passed under the potestas and acquired, in turn, all the rights of succession, etc., of a legitimate child. If he had children, they became the grandchildren of the arrogator. So, also, the property of the person arrogated became the property of the arrogator, so that if the arrogated person should afterwards be emancipated by his adoptive parent, he would lose his property. According to the Jus Civile all contractual obligations of the person arrogated were extinguished by the arrogation ; but the prsetor allowed creditors to recover from the arrogator to the extent of the property acquii-ed by the arrogation, or to subject the property itself to their claims. By adoption the person adopted passed under the potestas of the adoptive father, but his children, if any, remained under the potestas of their original paterfamilias. The person adopted acquired the right of succession of a legitimate child of his adoptive father, bu...

As in the case of arrogation, there was an earlier ceremonial form of adoption which was superseded in later times by an informal mode. Unlike arrogation, however, adoption could be effected by private act. To effect an adoption required two distinct steps : first, the extinction of the former patria potestas, which was accomplished by the ceremony of emancipation (by the father selling his son three times into bondage) , and, second, the establishment of the new patria potestas, which was accomplished by a fictitious suit in which the adopter claimed the son as his. In the case of the adoption of a daughter or grandchild, a single sale was sufficient to extinguish the original patria potestas. In Justinian's time, the adoption was accomplished by a simple declaration before a magistrate recorded in writing. The assent of the adopted person was not required.

There were two kinds of adoption: (1) The adoption of a person sui juris, which resulted in bringing under the potestas of the adopter a person previously not under power. This was called arrogation. This was the older form, and originally only persons sui juris could be adopted. (2) The adoption of a person alieni juris, which resulted simply in the transfer of the person adopted from one potestas to another. This was called simply adoption.

The subject of adoption occupied an important position in Roman law, adoptions being very common among the Romans. Originally the object of adoption seems to have been to prevent the extinction of a family by the death of the paterfamilias without heirs. The Romans attached much importance to the perpetuation of one's legfal personality. This was accomplished in the case of one dying leaving children by the succession of his children to his personality as his heirs. And anciently the chief function of the heir was not to succeed to the property of the deceased but to continue his legal personality. But if the head of the family ,left no descendant, his family and its sacred rights {sacra privata) were extinguished with him. To prevent this calamity, the device of adoption was resorted to, by which, by a fictitious relationship, an heir was obtained to a man without natural descendants. And in keeping with the purpose of the adoption, only men without hope of children...