The use of novation and procuratio in rem suam

These disadvantages could be avoided if the (old) creditor appointed the person to whom he wanted to transfer the claim as his cognitor or procurator in rem suam,^[330] i.e. he authorized the "assignee" to sue the debtor in his own name^{191 [331] and to keep whatever he received. Thus the "assignee" acted "in rem suam" for his own benefit. This authorization is often referred to as a mandatum ad agendum. The term "mandate", however, should be used with circumspection, as in the present context it does not refer to the consensual contract of mandatum,[332] but is an untechnical equivalent of the terminus technicus "iussum".[333] While procedural representation of this type could largely achieve the economic results of an assignment, without being dependent on the co­operation of the debtor, it had certain other drawbacks: the "assignor", after all, remained creditor and could, by instituting a claim himself, by accepting the debtor's performance, by releasing the debtor from his obligation, etc., still frustrate the purpose of the whole transaction. This situation changed only once litis contestatio had taken place: due to what has sometimes been called the "novatio necessaria" connected with the founding of the trial,[334] the new creditor now replaced the old one.[335] Up to the time of litis contestatio the "assignor" could also freely revoke the "assignee's" authority to sue.[336] Furthermore, the iussum ad agendum in rem suam possibly came to an end with the death of either of the two parties.[337] This somewhat precarious situation of the "assignee" was to a certain extent ameliorated by means of a cautio: the old creditor had to promise by way of stipulation (to which a penalty could be attached)[338] not to interfere with the "assignee's" right.[339] However, such a cautio did not, of course, transfer the claim to the "assignee"; legally, the (old) creditor was still able to proceed and thus to upset the position of the "assignee", who in turn could claim only what the "assignor" had recovered from the debt (or the penalty).}

3.