is stated both by Gaius (i. 190) and Ulpian (xi. 25), that tutors never acted for their full-grown female wards, but only sanctioned the latters' acts,—a rule to which coemption formed no exception (Gai., i. 115, 195); and even the first part of it is contradicted by a statement of Paul's in a passage preserved in the Collatio (iv. 2, 2),—that, when a filiafamilias passed in manum mariti, the act was her own, her father being no more than auctor. That a man could not go through the form of selling himself per aes et libram, however, is a proposition that is unsupported by any authority; the extent of the truth is that he could not sell himself into slavery or quasi slavery; and Gaius says expressly (i. 123) that neither of these was implied by the words used in coemption.
On these grounds I am disposed to think that there is an omission in the text of the MS. of Gaius, and that the latter ought to read somewhat to this effect,—"asse [emit vir mulierem, quam in manum recipit (see Gai., ii. 98), et invicem] emit eum mulier, cujus in manum convenit." Huschke's opinion is similar; in his last (4th) edition of Gaius he has "asse emit eum [mulier et is] mulierem, cujus in manum convenit." The objection of this reading is that, as vir does not occur in the previous part of the sentence, eum and is have no antecedent.
NOTE C. (See § 31, note 3.)
Considerable confusion has been caused as to the meaning of the word nexum by some definitions of it by writers of the later republic, preserved by Varro, De L. L., vii. 105 (Bruns, p. 308) and Festus v. Nexum (Bruns, p. 274). In reading them it must be kept in view that Mamilius (as quoted by Varro) and Aelius Gallus (as quoted by Festus) are not speaking of a person making himself nexus by copper and scales,—for that practice was abolished by the Poetilian law of 428 U.C. (supra, p. 161),—but of a thing being bonded (obligata) in that way. The phrase res nexa is quite common in the classical law, as applied to something impledged or hypothecated to a creditor; see Ulp., in Dig., xliii. 4, fr. 1, § 4, Antoninus (Caracalla), in Cod., viii. 19, 2, Alex. Sever., in Cod., viii. 27, 2. When a thing was given as a security per aes et libram it was called fiducia (supra, p. 140 sq.), and it is this that Q. Mucius Scævola (Varro, as above) appears to have had in view when correcting Mamilius; he limits the word nexum to a thing over which a nexus was created per aes et libram, and excludes from it an ordinary mancipatory conveyance of property,—a limitation and exclusion of which Varro approves. It may be objected that a fiducia, although undoubtedly intended only as a security, was in form transferred to the creditor in property. But the money lent to a borrower per aes et libram also became his property, and yet it was called nexum aes. The borrowed money and the thing given as fiducia, therefore, were in much the same
