Curatorship

Curatorship (cura or curatio), a familiar institution in the time of the Twelve Tables, was employed whenever a sui iuris person above the age of puberty was not capable of managing his own affairs due to some disability.

2.4.3.1     Cura Minorum

In principle, sui iuris persons above the age of puberty enjoyed full legal capacity. However, in the later republican period it became obvious that puberty was not an age at which a young person could competently manage his own affairs. Instead of extending the period of tutela, the Romans initially sought to address this problem by devising the lex Plaetoria (or Laetoria) around 200 bc which contained punitive measures designed to protect a minor who had been defrauded in a transaction by another person who took advantage of the former's lack of experience. The relevant transaction, though penalized remained nonetheless valid in principle and the praetor was left with the task of fully implementing the purpose of the statute.

Despite the external resemblance between curatorship over minors and tutelage over children, the two institutions differed in some important respects. Probably the most important difference between them was that, otherwise than in the case of the tutor, the curator did not exercise auctoritas but simply had to grant his consent (consensus) to the transaction entered into by the minor.^[267] As noted earlier, under certain conditions the tutor’s auctoritas was both necessary and sufficient for the transaction to produce its intended effects. The curator’s consent, on the other hand, was neither necessary nor in itself sufficient but existed as only one form of evidence (undoubtedly, the most important evidence) that the transaction favoured the minor’s interest. If a minor entered into a transaction that was disadvantageous, he could obtain a restitutio in integrum from the praetor regardless of whether he acted with or without a curator's consent (though in the former case, such a remedy would less easily be accorded).

A minor who suffered damage as a result of his curator’s negligence or malad­ministration could employ the actio negotiorum gestorum in the same way as a person under tutelage could rely on the actio tutelae mentioned previously.^[269]

Although in earlier times it appears that a minor was free to decide whether or not he wished to have a curator, in Justinian's time the rule prevailed that a minor should always be assisted by a curator unless the emperor had granted to the minor venia aetatis—a privilege whereby the minor was deemed to have already reached the age of 25 years. Such privilege could be granted only to men over the age of 20 and to women over the age of 18.^[270]

2.4.3.2     Cura Furiosi

The curatorship over insane persons (cura furiosi) derived from the time of the Twelve Tables which featured provisions for such persons deemed incapable of managing their own affairs^[271] and thus had to be placed under the care and custody of their nearest agnates (proximi agnati) or kinsmen (gentiles).href="#_ftn271" name="_ftnref271" title="">^[272] In the absence of such relatives, a curator could be appointed by the praetor.^[273]

The curator had responsibility for the care over both the person and property of his ward, and his functions and responsibilities closely resembled those of the tutor. Thus, he administered the ward's affairs and had to authorize all transactions concerning the latter's estate.

The cura furiosi continued as long as the insanity was present and ended automatically when the ward regained sanity.^[275]

2.4.3.3     Cura Prodigi

Cura prodigi was curatorship over a prodigal or spendthrift person, that is, a person who wasted away his property in a reckless and irresponsible way. Although a prodigus was not naturally incapable, the Law of the Twelve Tables provided that the estate of such a person could be placed under the supervision of the nearest agnati or gentiles. In later times, the praetor appointed the curator prodigi and this was preceded by a praetorian decree (interdictio) that debarred the spendthrift from managing his own property. The curator prodigi exercised control only in respect of the spendthrift's property,^[276] but not in respect of his person. In all other respects, his functions and responsibilities largely overlapped with those of the curator furiosi.

Possessing the power of understanding (intellectus), the prodigal was not entirely deprived of legal capacity. Just like an impubes after infantia, he could conduct unassisted legal acts by which his position was improved whilst any transactions he entered into that entailed detriment to his interests were deemed null and void even if he had his curator's consensus.

The cura prodigi was terminated by the death of the prodigus, or when the latter was in a position to establish convincingly that he had reformed himself and abandoned his wasteful ways.