Notes on Roman Law

In order to put a stop to the oppression of debtors by the purchase of debts for less than their amount, it was enacted during the later Empire that the transferee of a debt should be permitted to recover from the debtor no more than he had paid for the debt to the transferer, with lawful interest.

The assignor of a right of action was bound, unless otherwise agreed, to transfer with the principal right all subsidiary and accessory rights against the debtor, for example, all mortgages, including even any that might be acquired after the assignment. He did not warrant the solvency of the debtor, but only that the debt was due. Until the assignment was completed by notice to the debtor, the assignor could sue the debtor, but he was bound to turn over to the assignee the sum recovered. After notice, only the assignee could sue. The debtor could setup against the assignee any defenses he had against the assignor.

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 G...