CASE 157: Emancipated versus Freed
D. 37.12.4 (Marcellus libro nono Digestorum)
Patri qui filium emancipavit de his, quae libertatis causa imposita fuerint, praetor nihil edicit, et ideo frustra pater operas stipulabitur de filio.
(Marcellus in the ninth book of his Digests)
The praetor says nothing in his Edict about (the possibility of) obligations imposed in return for freedom when a father has emancipated his son, and for this reason a father’s stipulation for services from his son will have no legal validity.
1. No Claim.
The jurist Tryphoninus (D. 37.15.10) holds that a father has no claim to payment in return for emancipation. Is the principle the same here?2. Like a Patron. The emancipating pater familias had rights over the estate of a child similar to those that a patron had over the estate of a freedman (Ulpian, D. 37.12.1 pr.). It was common practice to manumit a slave in return for a promise of future services (operae) that might involve a wide variety of commercial and domestic duties, depending on the needs of the patron and the talents of the freedperson. Why is this not allowed from an emancipated son?
3. Not Like a Patron. If a freedperson attempted to defraud a patron of an interest in his or her estate, the patron could claim the property through an actio Fabiana or an actio Calvisiana. Gaius (D. 37.12.2) denies this recourse to an emancipating pater familias, on the ground that a freeborn person should have full power to alienate property. Do you find this logic convincing?
4. Recall into Power? In classical Roman law, emancipation was irrevocable (Paul, D. 1.7.34); the emancipated child could return into his fathers power only through adrogation (Case 154), which obviously required his consent. But in the fourth century A.D. laws began allowing recall if emancipated children displayed manifest ingratitude: Constantine, Frag. Vat. 248 (330); Valentinian, Valens, and Gratian, C.Th. 8.14.1 = C. 8.49.1 (367). Is this a radical innovation?