In the previous section we saw how a child-in-power (like a slave) can acquire both property and obligations for a paterfamilias.

We turn now to examine the reverse: the extent to which a child-in-power or other person subject to the power of a pater can either transfer to a third party the ownership of property belonging to the pater or make him liable to an obligation to a third party, particularly if the pater is un­willing that this occur.

In general, those in the power of another were not able to alienate that persons property unless he or she agreed to this (see, e.g., Ulpian, D. 6.1.41.1: domini volun­tate). This means that without his fathers consent a son-in-power could not directly make a third party its owner by handover or otherwise. What might the reason be? One simple way to think of it is that since children own nothing (Case 113), they have no transferable property rights of their own. However, once the pater has con­sented to the alienation, children-in-power operate as virtually full extensions of him. They can transfer ownership in almost all of the ways that he could; and, in­deed, it suffices if after the fact he ratifies their transfer of ownership (Paul, D. 13.7.20 pr.).

The situation with regard to contractual obligations is considerably more com­plex. In principle, neither children nor slaves could obligate a pater familias without his consent or at least his profit. But could they at least obligate themselves, granted that the objection to alienation, raised above, is not applicable in this context? Here Roman law drew a distinction between male and female children-in-power; fe­males, like slaves, were unable to obligate themselves, but males, provided they were of age and otherwise competent (see, e.g., Gaius, D. 45.1.141.2), had full con­tractual capacity.

This situation meant that a great deal of potential economic energy was bottled up within the legal boundaries of the agnatic familia. However, Roman praetors, in close alliance with the jurists, developed a number of ingenious ways to mitigate the resulting difficulty. One major task they faced, which is dealt with in this section, was to find ways whereby the pater could be made contractually liable through a child-in-power or a slave. Three major ways are discussed in this section: the pater was liable because (1) he had ordered the transaction, (2) he had profited from it, or

(3)     at least by implication he had held himself out as willing to be bound within a narrow business setting.

These three ways all have their importance, but the subject of section 3, namely the peculium, is still more important in freeing up the potential economic in­dependence of children and slaves.