Guardianship

(Inst.Gai.l. 142.-200., lnst.1.13-22., D.26.-27,, chiefly C.5.28., 5.33., 5.42.)

Various categories of sal iuris persons were regarded as needing legal protection— children under the age of puberty, women, minors, spendthrifts, and the insane— a sizeable part of the population, which helps to explain the high incidence of guardianship in Roman society, see Gardner, Roman Citizen, 155-78.

5.4.1 Guardianship of children below puberty

Paul, Edict, book 38: Tutelage is, as Servius defines it, force and power granted and allowed by the civil law over a free person, for the protection of one who, on account of his age, is unable to protect himself of his own accord. (D.26.1.1pr.)

This definition can serve as a convenient starting-point, even if it is not strictly accurate. It cannot be said that the main purpose of guardianship (technically a tutor who exercised tutela—tutelage) was to protect children; rather, it was to pro­tect their property for the benefit of those with rights of intestate succession in it (see Vuolanto, 'Child and Parent', 488). This was particularly evident in early law, and still important in the late Republic (when Servius was writing), although by then guardianship was increasingly seen as being in the interests of the child. Every Roman child that was sui iuris and impubes (below the age of puberty) had to have a guardian (tutor), lire main reason for the frequent occurrence of this form of guardi­anship was the death of the child's paterfamilias, usually his father.

5.4.1.1 Types of guardianship

There were four forms of this category of guardianship {tutela): testamentary, statu­tory, fiduciary, and magisterial (Lewis, 'Slavery, Family, and Status', 161-3).

(a) Testamentary guardianship (tutela testamentaria)

Gaius, Provincial Edict, book 12: By the Law of the Twelve Tables, parents are permitted to appoint by will tutors to their children, whether of the feminine or masculine gender, pro­vided that they are in power.

The right under the Twelve Tables to appoint a guardian by will was of considerable practical significance—testamentary guardianship was the most common form of tutela impuberum. The appointment had to be made in formal terms, e.g, 'Let Balbus be tutor', although in late law any form of appointment sufficed provided that it was sufficiently clear. At all times it was necessary to identify the guardian and the ward (pupillus).

(b) Statutory guardianship (tutela legitima) If there was no testamentary guard­ian, the guardianship vested under the Twelve Tables in the nearest agnate. If the nearest was a woman, the guardianship passed to the nearest male agnate. What if several agnates were equally entitled?

Gaius, Provincial Edict, book 12·. If there are several agnates, the most closely related obtains the tutelage, and if there are several in the same degree, they all obtain the tutelage. (0.26.4.9.)

Why did the nearest agnates have the primary right? Because they would he enti­tled to succeed on the intestacy of the child. Since the child could not make a will (while an impubes), the agnates had an obvious interest in the protection of the child's property. In the absence of male agnates, the guardianship originally vested in the sens—the child's 'clan', i.e. a group of families linked by a common name— but thege/is gradually became obsolete (as an institution) during the Republic.

There were two other forms of statutory guardianship. Under the Twelve Tables a patron had inheritance rights on the intestacy of his freedman. Consequently, a master who freed a slave under the age of puberty became the statutory guard­ian of the freedman. If the patron died, his children became the guardians of the freedman (since they acquired the right of inheritance). The third form of statu­tory guardianship occurred where an impubes was emancipated: the former pater­familias became the child's guardian (again because of the acquisition of rights of inheritance on intestacy).

(c) Fiduciary fptardiunship (tutela fiduciaria) This form of guardianship was asso­ciated with emancipation. If a paterfamilias emancipated an impubes and then died before the latter had attained puberty, the male children of the deceased were entrusted with the guardianship of the ward. There were other forms of fiduciary guardianship, but the one described was the only one to survive Justinian. It is not clear why fiduciary guardianship was separately classified—there was no compel­ling reason for making a distinction between fiduciary and statutory guardian­ship, and the former in any case seems to have occurred rarely.

(d) Magisterial suardiausliip (tutela dativa) If there was no testamentary, statu­tory, or fiduciary guardian, magistrates were given the power to appoint a guardian under the lex Atilia c.210 (?) BC. Hence, this form of guardianship was called dativa ('appointed') or decretalis ('decreed'). It is unclear what happened before 210 BC if a child lacked a guardian. Schulz suggests that it may be that 'numerous minors were actually without guardians' (Classical Roman l.aw (1951), 167). Under the lex Atilia, the appointment could be made in Rome by the urban praetor and the tribunes; a similar power was granted in the late Republic to provincial governors for appoint­ments in the provinces. In the Empire, a special praetor dealing with guardianship was created and given jurisdiction over appointments, as were city prefects. In the provinces, local magistrates acquired jurisdiction over the appointment of guard­ians where the property of the impubes was not of substantial value.

How did the matter come before the magistrate? Anyone with an interest in the child, including a creditor, could apply for an appointment to be made, and might suggest a particular individual. The magistrate could make the appointment if satis­fied with the proposed appointee. In some instances, persons had a duty to apply— mothers, for example, and freedmen in respect of their deceased patron's child:

Modestinus, Exemptions, book I:...

Apart from guardianship under the lex Atilia, magistrates could be involved in other ways in the appointment of guardians. For example, a praetor could appoint a tem­porary guardian to act for an impubes in litigation between the child and its normal guardian. And the praetor had a general supervisory jurisdiction over the appoint­ment of testamentary guardians, including the power to reject the appointee:

Tryphoninus, Uis/whilii»», hook 14:... the praetor follows what is advantageous to the pupilli and not what is written in the will or codicil. (P.26.3.10.)

The involvement of the State in the appointment of guardians, following the lex Atilia, was instrumental in the gradual change in the nature of Roman guardian­ship during the course of the Republic. The magistrate could scrutinize the pro­posed appointment, require security for good management from the guardian, and supervise the performance of the guardian's duties. Such factors eventually made the interests of the child the prevalent concern in guardianship. Guardianship came to he seen more as a public duty.

5.4.1.2 Capacity to act as guardian

The basic requirement was that a guardian had to be a male citizen and must have attained puberty. Women could not be guardians, as a general rule, but in the late Empire a widow was allowed to apply for the guardianship of her children (or grandchildren). She had to promise not to remarry; if she broke the promise, the guardianship ended. A guardian did not have to be si if inns; a son-in-power could be appointed, it being normal for his paterfamilias to act as guarantor.

Not everyone w’ho was a male citizen of the age of puberty was eligible to be a guardian. A number of grounds for disqualification were established in the course of time, as well as excuses that the eligible could claim in order to be released from guardianship:

(a) Disqualification Anyone who was deaf or dumb was disqualified.

(b) Excuses T hose w^rho wished to avoid guardianship could plead a variety of excuses. Since it had become a potentially onerous public office by the late Republic, one can appreciate why an extensive law on excuses emerged—the topic became the subject of important monographs by jurists such as Modestinus and merited a long title in Justinian's Digest.

Who could be excused? In early law, a testamentary guardian had the right to refuse the office, but in the early Empire the right was limited to refusal on set grounds (see later). Similarly, magisterial guardians could refuse only on set grounds. T he position regarding statutory and fiduciary guardians is unclear. It seems that they had to accept but could not be forced to act as guardians. This unsat­isfactory position lasted until the Empire, when they could be compelled to act.

Where a person was relying on an excuse, he had to plead it within certain time limits, time running from the moment when he learned that he had been appointed. The rules on time limits demonstrated the Roman penchant for detail and orderly administration:

Modestinus, Excuses, book 4: Someone living in the same city where he is appointed or within a hundred miles of it must excuse himself within fifty days; after this time, his plea will not be accepted, and he will have to undertake the administration.... Someone who is abroad more than a hundred miles from the city will have a day allowed for every twenty miles, start­ing from the time he finds out (for the magistrates must inform him either in person or at his house) and besides this another thirty days for the preparation and presentation of his case. (D,27.1.13.1.)

An excuse could be pleaded either at the initial stage or, if it had arisen after accept­ance, as a ground for abandoning the guardianship.

What were the excuses that could be pleaded? A brief outline will have to suffice amidst the morass of detail. Among the more obvious excuses were: serious ill- health, old age (seventy or above), being under twenty-five (until Justinian made it a disqualification), and illiteracy. One who already had three guardianships was excused, as was the parent of three legitimate children (but four outside Rome, five outside Italy). Certain magistrates and office holders were exempt. So were mem­bers of a heterogeneous array of occupations, such as grammarians, philosophers, doctors, and law teachers. And 'deadly enmity' between the appointed person and the child's late father provided an excuse (D.27.1.6.17.). Excuses could be perma­nent or temporary, absolute or partial. One of the most interesting examples of partial excuse concerned the inhabitants of Troy:

Callistratus, Judicial Examinations, book 4: The inhabitants of Troy, who, because of the cel­ebrated fame of the city and its connection with the origins of Rome, have long since been granted the fullest immunities... have an exemption from tutelage as regards pupilli who are not Trojans... (D.27.1.17.1.)

5.4.1.3 The role of the guardian

The guardian's major functions were to manage the affairs (tutela) of the ward and to authorize his transactions (see later). The guardian would not normally have physical control over the ward—that would be in the hands of the ward's mother or other close relative. However, the guardian did have a duty to provide a reasonable sum out of the ward's property for the latter's maintenance (compare the Babatha archive). The guardian usually followed the expressed wishes of the deceased pater­familias concerning maintenance, but they could be overridden by an application to the praetor:

Ulpian, Edict, book 34: The praetor is accustomed to being approached quite often to decide where children are to be fed or maintained.... [1] He usually decides whether someone ought to be better maintained by reference to the individual, his situation, and the circum­stances; and sometimes the praetor overrides the father's instructions. (D.27.2.1pr.-1.)

Before a guardian started to administer the ward's estate, he normally gave security and made an inventory. Security was given in the form of a formal promise by the guardian (backed by sureties) that the ward's property would be kept safe. All guardians were required to give security except those appointed by will or by high- ranking magistrates. The making of an inventory (under the supervision of officials) became standard in the classical period, except by those testamentary guardians who were exempted by the will. Failure to make an inventory could be serious:

Ulpian, Edict, book 35: A tutor who does not make.... an inventory, is held to have acted fraudulently, unless perhaps some necessary and lawful reason can be alleged why this was not done. Therefore, he ought to undertake nothing before an inventory is made, except something which cannot wait even for a moderate delay. (f>.26.7.7pr.)

(a) Management of affairs (administratio)

Marcellus, Digest, book 21: A tutor's principal duty is that he should not leave the pupillus unprotected. (D.26.7.30.)

It was the proprietary interests of the ward that the guardian was meant, above all, to protect. Administratio was particularly relevant when the child was infans, i.e. too young to utter the set words necessary to enter certain transactions (even­tually fixed as being below the age of seven). Such a ward was legally incapable of doing anything. The guardian acted for him, with wide powers of management: e.g. he could buy and sell property, collect and pay debts, make investments, and represent the ward in litigation. In the Empire, some restrictions were placed on the powers of alienation: a magistrate's permission had to be sought for the sale of certain types of land unless authorized by will. Constantine extended the prohibition to sale of valuable property of any kind; and Justinian subjected all the property of the ward to the ban. Sales of property in breach of these rules were voidable by the ward on attaining puberty. Contracts made by the guardian during administratio were binding on him, not on the ward. Only the guardian could enforce such contracts—the relationship of guardian and ward was not one of agency.

A guardian was expected, certainly in classical law, to manage the affairs of the ward in a business-like manner, selling off perishables, and making appropriate purchases and investments without undue delay. For example:

Paul, Views, book 2: If a tutor on his appointment does not sue those whom he discovers to be debtors and through this they become less able to pay or if he does not invest the monies belonging to the pupillus within the first six months, he himself can be sued for the money owing and for the interest on the money which he has not loaned out. (D.26.7.15.)

What was the standard of care expected of the guardian in administratio?

Ulpian, Edict, book 36: The tutor is called to account for all that he has done which should not be done and for that which he has not done, answering for fraud, negligence, and the stand­ard of care shown in his own affairs. (P.27.3.Ipr.)

This statement requires some consideration. In early law it is likely that the guard­ian was liable only for dolus ('fraud'). Unfortunately, the concept of dolus did not have a fixed meaning: originally, the term most probably signified fraud, i.e. dis­honest conduct, but later it seems that it included gross negligence. Eventually, the liability of the guardian encompassed failure to match the standard of care shown in his own affairs—as the previous text states—or in some cases, failing to act as the bonus paterfamilias would have acted:

Callistratus, judicial Examinations, book 4: Tutors and curators of pupilli are required to show the same care over the administration of the pupillary property as the head of the household ought in good faith to display for his own property. (D.26.7.33pr.)

The apparent conflict in these two texts can be resolved. The former relates to the general management of a ward’s interests, whereas the latter is specifically con­cerned with the property of the ward. Although the ward's property constituted a vital part of his affairs, there were other matters comprised in administratio. So it seems that differing standards of care applied to different areas of management. It is quite plausible that dealings with property required stricter diligence from the guardian than other aspects of administratio. See MacCormack, G., 'The Liability of the Tutor in Classical Roman Law' (1970) 5 IJ, 369-90.

Where damage had been caused to the ward's property, but not through the guardian’s negligence, the latter was not liable:

Hermogenian, Epitome ofEav/s, book 2: If the property of the pupillus is lost through being attacked by robbers or if the bankerto whom the tutor gave themoney... is unable to return the whole sum, the tutor is not on this account compelled to pay anything. (D.26.7.50.)

(b) Authorization of transactions (auctoritatis interpositio) Once the ward ceased to be infans he acquired the capacity to enter legal transactions. Some he could make without the guardian's authorization—those which were unilateral and entirely for his benefit. But the transaction had to be entirely for his benefit: one that carried any actual or potential disadvantages was excluded.

What if a ward entered a bilateral transaction without his guardian's authoriza­tion? The ward could not be sued. Thus, if a loan was made to the ward, the creditor could not recover it. But the ward could not enforce a bilateral transaction unless he was prepared to perform his obligations. These rules meant that entering a bilateral transaction with a ward could be a fruitless business. So it was usual to insist on the guardian's authorization, which made the transaction fully binding. When authorization was given, the transaction bound the ward, not the guardian, unlike the case where the latter contracted in his own capacity in the course of administratio. Still, the Roman businessman no doubt preferred to contract with the guardian directly rather than with the ward. It is likely, therefore, that the process of giving authorization occurred infrequently. When it was given, it had to be done through an oral assent by the guardian. His presence was required: prior authorization or subsequent ratification, even if in writing, were insufficient. If the proposed transaction involved the guardian's personal interests, he could not validly authorize it. Could a guardian of an impubes ever be compelled to give his authorization? It seems not; but he would be liable for any unreasonable refusal that caused loss to the ward.

If a ward had two or more guardians (possible especially in statutory guardian­ship), they had several options as to how to perform their functions. They could opt for joint administration, in which case Justinian ruled that the authoriza­tion of one of them was generally sufficient to perfect a transaction by the ward. Previously, all had to authorize except if there were testamentary co-guardians (and possibly magisterial ones), in which case the authorization of one sufficed. Another option was to entrust the guardianship to one particular guardian—the tutor gerens (the 'active' guardian). Or the co-guardians could divide up the admin­istratio between themselves or seek directions from the praetor.

5.4.1.4 Remedies

The legal relationship between guardian and ward gave rise to a number of possible remedies:

(a) Removal An action could be brought to remove a 'suspected' guardian, i.e. one who was shown to be untrustworthy. Anyone could bring the action except the ward. Removal was an important remedy, the only one available against a guard­ian during the guardianship. Originally, the action probably could be brought only for dishonesty, but in later law negligence sufficed. As soon as the accusation was brought the guardian was suspended. If the accusation was upheld, the guardian was removed from office and another one was appointed in his place, where neces­sary. If dolus was proved against the guardian, infamia resulted; but not otherwise:

Ulpian, Edict, book 35: Someone who has been removed because of dilatoriness or boorish­ness, idleness, simpleness, or silliness is in the position of being able to leave the tutelage with his reputation intact. (D.26.10.3.18.)

(b) Embezzlement Under the Twelve Tables, an action was allowed to a ward against his guardian, at the end of the guardianship, for embezzlement of the ward’s property. Double damages were awarded and infamia resulted. It seems that this action was available only against statutory guardians in early law but was later extended to all forms of guardianship. The action lay in addition to the standard delictual actions arising from the guardian's misconduct:

Ulpian, Edict, book 36: However, Papinian says that a tutor who embezzled pupillary property will be liable for theft, and, if sued for theft, his having been sued in the action on tutelage for embezzlement will not release him from the action of theft. For the obligations in relation to theft and in relation to tutelage are not the same, which is to say that several actions can arise out of the same facts and several obligations. He is liable both for tutelage and theft. (D.27.3.1.22.)

(c) Actio tutelae This action, which dates from the end of the Republic, became the standard remedy for wards against guardians at the end of the guardianship. It lay for fraudulent or negligent maladministration, and condemnation involved infamia (probably only for fraud). The actio tutelae did not originally lie for failure to act, but in the early Empire it was extended to all forms of negligence, e.g. failure to render a proper account:

Ulpian, Edict, book 36: It is part of the tutor's duty to compile an account of his actions and render it to his pupillus; if, on the other hand, he has not done this or if he does not reveal what has been done, he will be liable for it in the action on tutelage. (D.27.3.1.3.)

If the guardian was found liable, the ward's claim took precedence over the guard­ian’s unsecured creditors. Constantine gave the ward a tacit hypothec (implied mortgage) over the guardian's property, thus allowing the ward priority over all creditors. If the guardian was sued under the actio tutelae, he could deduct pay­ments and expenses incurred on behalf of the ward, if reasonable. Later, the prae­tors allowed the guardian the actio tutelae contraria to recover reasonable expenses:

Ulpian, Edict, book 36: The praetor proposed the actio contraria of tutelage and brought it into use so that tutors might undertake an administration more readily in the knowledge that the pupillus was to be liable to them for matters arising out of their administration... tutors are encouraged the more willingly to employ their own resources to the benefit of the pupillus when they know that they will get back what they have spent. (D.27.4.1pr.)

Apart from the main guardianship remedies, there were other alternatives. For example, if the guardian had given security for safe management of the ward's property, his promises and those of his sureties would be enforceable at the end of the guardianship. And in some circumstances, it was possible to sue magistrates for failure to ensure that a guardian promised sufficient security.

5.4.2 Guardianship of women

Roman women who were sui iuris and had reached puberty were subject to guardi­anship (tute/a mulierum). The origins of the institution dated from early Roman society and were prompted by the need to protect family property. Since women were restricted from making wills in early law (see 8.4.1.1), their agnates had the expectation of inheriting from them on intestacy. Consequently, it was considered important for the property to be protected by a guardian against any injudicious disposal by the woman (Lewis, 'Slavery, Family, and Status', 163-4), There is some evidence in juristic writing and other literature that women were considered to be rather lacking in judgement in the handling of property, and thus easily deceived. This notion 'gained some colour from the ignorance of law and business practice forced on many women by their exclusion from public life, which in turn was made to justify this exclusion' (Gardner, Women in Roman Law, 21-2). And yet the astute Roman businesswoman was not a rare phenomenon (see e.g. Jakab, E., 'Financial Transactions by Women in Puteoli', in New Frontiers, 123-50). It may be that male prejudice accounted for the survival of tutela mulierum until the later Empire, although this form of guardianship had lost its importance much earlier. Gaius stressed in his Institutes that it was difficult to find any convincing arguments for the retention of guardianship of women (fnst.Gai.1.190.). See Frier and McGinn, Casebook, 450-6; as well as Evans Grubbs, Women, 23-46. And for a recent survey, see now Halbwachs, V., 'Women as Legal Actors', in OHRLS, 443-55 who shows that the reality and the law seemingly diverged significantly on this point.

5.4.2.1 Forms of guardianship

Tutela mulierum could arise in similar forms to tutela impuberum, and many of the rules were identical:

(a) Testamentary A paterfamilias could appoint in his will a guardian for any female descendants that might become sui iuris on his death. Moreover, a husband in a mantis marriage could appoint a guardian for his wife, to act on the husband's death. It was not uncommon for the terms of the appointment to allow the widow to choose her guardian, and even to change the guardian at her discretion. The right of choosing a guardian was sometimes publicly conferred on women as a reward for services to the State.

(b) Statutory The forms of statutory guardianship of women were similar to those in the case of guardianship of impuberes. Guardianship by agnates was the most important form in the Republic. Claudius demonstrated the decreasing impor­tance of the institution in the Empire by abolishing agnatic guardianship over all women, although Constantine restored it for those below puberty.

(c) Fiduciary If a woman had a statutory guardian, she could enter a collusive suit, by which she was 'sold' to a 'purchaser', provided the guardian consented. This freed her from statutory guardianship—the most inconvenient form of guardianship (since she could not compel the consent of the guardian). After the sale, the purchaser became the woman’s fiduciary guardian; and his consent was compellable.

(d) Magisterial If a woman did not have a testamentary, statutory, or fiduciary guardian, a magistrate could appoint one for her under the procedure introduced by the lexAtilia (see 5.4.1.1). And a magisterial guardian could be appointed even if the woman already had a guardian (but who was absent or unavailable).

5.4.2 2 Functions of the guardian

The guardian of a woman in tutela mulierum had a very limited role compared to that of the guardian of a child under the age of puberty. There was no administratio: the woman was responsible for managing her own affairs, although in practice the guardian often gave her assistance. As there was no administratio, it followed that he did not have to give security, or make an inventory, or render accounts; nor could any of the remedies for maladministration apply. If the guardian caused damage to the woman or to her property, his liability was based in delict and not in his capac­ity as guardian.

So what did the guardian do? His role was to authorize the woman's transac­tions where necessary. Since an adult woman had far greater legal capacity than an impubes, the guardian's authorization was required relatively infrequently. Generally, the greater the potential diminution of the woman's property, the more likely it was that consent was required for the transaction. It was needed, for example, to make a will, to manumit a slave, to enter a manus marriage, or to promise a dowry. But consent was not required, on the other hand, to enter a free marriage or to lend money. For example, graffiti discovered in Pompeii suggest that a certain Faustilla carried on an active business as a pawnbroker (see Gardner, Women in Roman Law, 17 ff.). In reality, the position of the woman was one of considerable independence because, even when consent was required, the guard­ian could be compelled to give it on an application by her to the praetor (except in the case of a statutory guardian). The reason why an exception was made in the case of statutory guardians was to protect their rights of succeeding on the woman's intestacy.

Augustus's family legislation had a considerable impact on the guardianship of women. The lex Papia Poppaea AD 9 released married women (and concubines) from guardianship if they had given birth to at least three children by separate births. Four were required in the case of a freedwoman, children born before manumission not counting. This right (the ins liberorum) was sometimes given to women who had not satisfied Augustus' criteria but who were deemed worthy of the honour. The combination of Augustus's grant of the ius liberorum and Claudius' abolition of the agnatic guardianship of women proved to be major factors in the gradual demise of tutela mulierum in the Empire.

5.4.3 Curatorship

(Inst.Gai.l. 197.-200., Inst.1.23., D.27.10., 42.7., C.5.70.)

Curatorship (cura) was a form of guardianship that normally arose outside the main forms of tutela (see Frier and McGinn, Casebook, 438-47). However, there were situations in which a person subject to tutela could have a curator. For example, a curator could be appointed to protect the interests of a ward involved in litigation with his guardian or in making contracts with him; or where the guardian was incapable of acting:

Pomponius, Manual, book 2: It is even customary for a curator sometimes to be appointed to someone who has a tutor on account of the tutor's ill-health or extreme age... (D.26.1.13pr.)

5.4.3.1 Curatorship of those with diminished mental capacity

Ulpian, Sabinus, book 1: The Law of the Twelve Tables prevents a prodigal's dealing with his property, and this was originally introduced by custom. Today, however, praetors and gover­nors, if they encounter persons who have set neither time limit nor boundary to their expend­iture, but squandered their substance by extravagance and dissipation, are accustomed to appoint a curator for them on the analogy of a lunatic. They remain in care, the lunatic until he regains his health of mind, the other until he comes to his senses; when this happens, they automatically cease to be in their curator's power. (D.27.10.1pr.)

(a) Curatorship of the insane (cura furiosi) A sui iuris person who was insane lacked legal capacity, except during lucid intervals, and was placed by the Twelve Tables under the guardianship of his agnates (or the gens if there were no agnates). Later, the praetor acquired jurisdiction over the insane: he could appoint a curator if there were no agnates or if the only agnates were unsuitable. An inquiry would normally be held:

Ulpian, All Seats ofludgement, book I: The praetor must be careful not to appoint a curator for someone rashly without the fullest investigation; for many feign madness or mental illness so as to escape their legal obligations by receiving a curator. (D.27.10.6.)

In the later Empire, formal appointment as curator became necessary in all cases, even for the closest agnates. If the insane person recovered his sanity, he became legally capable again and the guardianship ceased; but it revived if there was a relapse into insanity. In early law, only furiosi (i.e. lunatics, madmen) were subject to guardianship, but in the Empire the category was extended to include persons with less severe forms of mental illness or even with physical incapacities, e.g. the deaf or dumb. Typically, the jurists regarded mental incapacity as a question of fact in each particular case and eschewed the formulation of any general tests regard­ing the fundamental question—when is a person to be regarded as fiiriosus? See Schulz, Classical Roman Law (1951), 198-9.

The prime function of the curator was to manage the affairs of the afflicted person, especially his property—a furiosus was incapable of any legal act. It seems, however, that cura furiosi was not motivated entirely by proprietary considerations:

Julian, Digest, book 21: The curator's concern and care should extend over the health and wellbeing of the lunatic as well as the property. (D.27.10.7pr.)

A curator was liable for maladministration but was entitled to recover reasonable expenses.

(b) Curatorship of prodigals (cura prodigi) Prodigals were sui iuris persons who wasted inherited property (see Zak, E., 'Historical Development of Roman Guardianship of a Spendthrift', in Melanges Wolodkiewicz II, 1133-56). The impor­tance of inherited wealth in Roman society (at least among the wealthier classes) made the prospect of the dissipation of family wealth by some reckless idiot too dangerous to go unchecked.

The Twelve Tables placed persons who wasted property that had been inher­ited on intestacy in the guardianship of their agnates (or the gens if there were no agnates). Later, when the praetors acquired jurisdiction over prodigals, they extended the regime to include inheritance by will. They could appoint persons other than agnates to be curators if they felt that the agnates were unsuitable. In the developed law, the issue of prodigality—regarded purely as a question of fact— was for the praetor to decide, following an application by any interested party. If the praetor was satisfied that the alleged prodigal was wasting property, he would issue an interdict preventing the prodigal from any dealings with his property other than those entirely for his benefit. Consequently, the prodigal could not make a will or alienate property:

Ulpian, Edict, book 16: Julian wrote that those who were forbidden to deal with their goods by the praetor could not convey anything to anybody, because they have no goods since they are forbidden to alienate. (D.27.I0.10pr.)

The function of the curator of a prodigal is not altogether clear. It seems that he had the right to manage the property of the prodigal and to authorize transac­tions that were potentially detrimental. The curatorship lasted until the praetor withdrew the interdict. He would not do this unless satisfied that it was safe to do so, i.e. that the prodigal had ceased his extravagant ways, but this might not easily be proved. Maladministration by the curator was actionable by the prodigal. The curator could recover reasonable expenditure.

5.4.3.2 Curatorship of minors {cura minorum)

On attaining puberty the sui iuris male, freed from guardianship, had full legal capacity; the female had limited capacity, being under tutela mulierutn. Boys of four­teen (and girls of twelve) are not normally models of prudence and wisdom, even in Rome. They can be easily exploited. A lex Plaetoria c. 200 BC was necessary in order to penalize anyone who defrauded a minor, i.e. a person between puberty and twenty-five years of age. Condemnation in the action, which could be brought by any citizen, involved infamia. Further, the praetors later allowed a defence under the statute against anyone who tried to enforce a transaction disadvantageous to the minor, whether or not fraud had occurred. If the transaction had already been made, the praetor could rescind it by restitutio in integrum (see 33.4.1). The lengths to which the minor could be aided are demonstrated by the fact that transactions could be questioned, even though they had occurred during tutela with the guard­ian's consent;

Modestinus, Replies, book 2: Even if it can be shown that a pupillus has been put to a disadvan­tage in a case where he had received the authority of his tutor who was also his father, his curator, subsequently appointed, is not prevented from seeking restitutio in integrum on his account. (D.4.4.29pr.)

The lex Plaetoria, as applied by the praetors, put the minor in a very advantageous position. As a result, people were wary of entering transactions (with minors) that could be easily undone. So it became the practice to insist that a third party, trusted by the minor, should be present at the transaction and should assent to it. It would then be more difficult for the minor to allege later that his inexperience had been exploited. The third party came to be known as curator. Neither his presence nor his consent was required in law but provided strong evidence of the fairness of the bargain. Hence, the wise businessman would normally insist on a curator when dealing with a minor. It seems that prior authorization was sufficient evidence of the fairness of the transaction, but subsequent ratification was not.

Curators were initially used for single transactions on an ad hoc basis; but in the second century AD it became usual for the same curator to look after the inter­ests of a minor on a more permanent and regular basis. An important develop­ment occurred under Marcus Aurelius—minors could apply to a magistrate for the appointment of a curator for the duration of the minority, and this became the normal practice:

Ulpian, Edict, book 11: And, therefore, today, up to this age, young men are governed by cura­tors and under this age the administration of their own property should not be entrusted to them, even though they might be able to look after their own affairs well, (D.4.4.1.3.)

It was not just 'young men' for whom curators could be appointed—young women could request a curator, especially if they no longer had a guardian. The comment that administration ‘should not be entrusted' to minors is revealing as regards the

practice that had developed by this time: the curator had no formal right to man­age the affairs of the minor but was often requested to do so. The giving of consent remained an important function but, as before, its purpose was evidentiary—it was not strictly required. Even if given, consent did not validate anything since a trans­action by a minor was valid without it. Indeed, a minor need not have a curator at all: he could enter transactions independently if he could find anyone rash enough to do business with him—it seems that the lex Plaetoria and the praetorian rem­edies were still applicable. Curatorship of minors ended at twenty-five, but from the late classical period it could be removed at an earlier age by imperial decree. Constantine provided that this procedure was unavailable unless the minor had attained the age of twenty (eighteen for females).

In the later Empire cura minorum was increasingly institutionalized. It came to be regarded as an extension of full guardianship: management of the minor's affairs became the chief function of the curator. Many of the rules of tutela became applica­ble, e.g. the law on disqualifications and excuses. Consent to transactions acquired more than evidentiary importance: in late law it seems that a minor could not incur any liabilities without the curator's consent. The assimilation of curatorship and guardianship in late law is evident from the leading titles in the Digest on guardian­ship (in D.26. and D.27.)—many passages therein contain the phrase 'tutors and curators' as if these terms were synonymous.

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