Guardianship and Curatorship

In principle, a sui iuris Roman citizen enjoyed all the rights of citizenship and could own property as well as perform legal acts. In practice, however, certain sui iuris individuals were wholly or partially unable to conduct their own affairs on account of their immaturity, gender, or mental disability or impairment.

Two basic forms of guardianship were recognized: namely, guardianship over persons below the age of puberty (tutela impuberum)^[307] and guardianship over women (tutela mulierum).

From the time of the Twelve Tables a guardian might be appointed by will by the paterfamilias to those in his potestas who would become sui iuris on his death.^[308] If a testator failed to appoint a guardian for a child below the age of puberty who was to become sui iuris at the testator’s death, the nearest agnates (proximi agnati)^[309] of the child became ipso iure (automatically) his or her guardians provided that such agnates were themselves above the age of puberty.^[310] The lex Atilia (probably late third century bc) allowed the praetor at Rome and a majority of the tribunes of the plebs to appoint a guardian to a child who had none. The leges Iulia et Titia (probably late first century bc) extended this to the provinces, and there was additional provision for appointment of a special guardian when there was a lawsuit between the ward (pupillus) and the existing guardian.

To serve as a guardian was considered to be a public duty and could not be refused except for specific reasons.

From the earliest times, women who were sui iuris and above the age of puberty were also placed under guardianship. The existence of such guardianship (tutela mulierum) manifests the essentially patriarchal nature of Roman society where a woman always had to remain under the control of a male.^[314] The appointment of a woman’s tutor occurred in the same manner as that of the tutor impuberis: by testament of the person (father or husband) who had power over her; by law (in which case she was placed under the guardianship of her agnates); or by a magistrate.

Curatorship (cura) became relevant where a sui iuris person above the age of puberty was incapable of managing his own affairs due to some disability. Cura­torship occurred in various forms, the most common being curatorship in respect of juveniles above the age of puberty but under 25 years of age (cura minorum), insane persons (cura furiosi) and prodigals (cura prodigi).

The lex Plaetoria (or Laetoria) of c. 192 bc provided for a fine for anyone who defrauded a person under the age of 25. The same statute gave the minor a defence (exceptio legis Plaetoriae) if he was sued by someone who had defrauded him. Where the defrauded minor had entered into a transaction in which he suffered loss, the praetor gave the minor a remedy aimed at restoration of the previous legal position or status quo ante (restitutio in integrum)?^[315] Because of the possibility of the praetor’s intervention, the practice developed where persons wishing to conduct business with a minor required the magistrate’s appointment of an independent adult (a curator) to approve the transaction. Originally, the curator had no formal legal recognition and this status prevailed for a long time as they were merely deemed someone appointed ad hoc when the need arose for a specific transaction. However, from the late second century ad it became possible for a minor to request the appointment of a permanent curator to assist him throughout his minority.^[316] Under the Law of the Twelve Tables, insane persons and their property were placed

under the curatorship of their nearest agnates (proximi agnati) or kinsmen (gen­tiles)?⁵ In the absence of such relatives, a curator could be appointed by the praetor.^{[317] [318]} Furthermore, a prodigal who wasted away an inheritance that he had received on intestacy, and later any spendthrift person, could be placed under curatorship by the praetor and prohibited from managing his property.