Tutela Impuberum

This form of guardianship pertained to persons who were sui iuris but still below the age of puberty (impuberes) which was classified as under 14 years of age for a male and under 12 years of age for a female.^[230] The principal purpose for the creation of guardianship over children of this age was to maintain and safeguard their property interests.^[231] The person appointed to protect the person and interests of the impubes (now referred to as pupillus) was the guardian (tutor), and his functions are qualified as a power (potestas).^[232] Originally, any male Roman citizen above the age of puberty could serve as a guardian but in the later imperial age the minimum age for tutors was raised to 25 years.

There were three principal forms of tutela impuberum: testamentaria, legitima and dativa.

The tutela testamentaria was the most common and important form of guard­ianship, which dated from the time of the Twelve Tables. This legislation allowed a paterfamilias to appoint, in his will, a guardian (or guardians) for his children below the age of puberty who were his sui heredes, i.e., those in his potestas who would become sui iuris on his death.^[234]

The tutela legitima arose in the absence of a testamentary guardian (tutor testamentarius).

There were two further cases of guardianship by law, namely pertaining to patrons (tutela legitima patronorum) and parents (tutela legitima parentum). The former was exercised by patrons (or, after their death, their children) over their freedmen manumitted from slavery while still under the age of puberty.^[238] The latter form of tutela legitima occurred when a father emancipated his child who was still below the age of puberty. In such a case the father became by law the guardian of the emancipated child.^[239]

In the absence of a tutor testamentarius or a tutor legitimus, certain legislative enactments provided that a magistrate should appoint a guardian for the child - the lexAtilia (probably late third century bc) and the leges Iulia et Titia (probably late

first century bc). This form of guardianship was referred to as tutela dativa.¹³ The lexAtilia stipulated that if the child lived in Rome or Italy the praetor and a majority of the tribuni plebis should appoint the guardian.

A special form of official guardianship was the tutela praetoria, which was usually instituted in the case of a controversy or conflict of interests between an appointed guardian and his ward during the guardianship. In such a case the praetor appointed a special guardian (tutor praetorius) to protect the ward's interests.^[243] In the time of Justinian, a curator rather than a tutor praetorius was appointed for this purpose.

2.4.1.1     Functions and Responsibilities of Guardians

In early times, a guardian's powers and functions were directed at the protection of both the person and property of the ward (pupillus). The scope of the tutela was almost identical to that of the patria potestas and the tutor stood in the position of an owner (domini loco) in respect of the ward's estate.^[244] As Roman law progressed, however, the guardian's functions were limited to the administration of the ward's estate while the care for the ward's person was placed in the hands of the mother or other family members. Moreover, the guardian's role became more specific and his power over the ward's estate was restricted in many ways. An important criterion guiding the execution of a guardian's functions was good faith (bona fides) at all times. The relationship of trust between tutor and ward was so crucial that, under the law of Justinian, guardianship was regarded as a situation engendering obligations analogous to those that originated from contracts.^[245]

A guardian's functions and powers varied depending on the age of their ward.

If the ward was beyond the age of infancy (i.e. over the age of 7), he had limited legal capacity and could enter unassisted into legal transactions whereby his position was improved.^[248] However, if the relevant transaction had the potential to worsen the ward's position it could only be performed with the express approval of the guardian (auctoritas, auctoritatis interpositio).^[249] In other words, without the guardian's approval the ward could acquire rights but could not alienate them nor incur duties. As most transactions engendered reciprocal rights and duties, the ward's transactions hinged upon the guardian's approval even if on balance they appeared beneficial for the ward. If the ward entered into a bilateral contract without such approval, the result was classified as a ‘limping transaction' (negotium claudicans): only the other party was bound to the transaction and not the ward, although the latter could not demand performance from the other party unless he was prepared to do likewise.^[250] Furthermore, a guardian who granted his approval irresponsibly and without due attention to the ward's interests could be held personally liable for the detrimental consequences of his approval or the praetor could order the reinstatement of the former legal position (restitutio in integrum).^[251]

As already noted, initially the guardian was regarded as having the same powers as an owner (domini loco) in respect of the ward's estate, which he could alienate as he saw fit.

Moreover, certain obligations were placed upon the guardian: he had to prepare an inventory (repertorium or inventarium) of all the items belonging to the ward’s estate at the commencement of his office,^[255] and in certain instances was required to provide security for the safety and proper administration of the estate (cautio rem pupilli salvamfore).^[256]

A number of remedies were provided against a tutor who had been found guilty of maladministration of the ward’s estate. If the tutor fraudulently embezzled the estate, the ward could institute a remedy known as actio de rationibus distrahendis against the tutor at the end of the guardianship. This action was delictual in nature and was directed at twice (in duplum) the damage suffered by the ward.^[257] Another more general action deriving from the republican age was labelled the actio tutelae.

It should be noted, finally, that from the time of the Twelve Tables the tutor who had acted fraudulently or dishonestly in managing the ward’s affairs could always be removed by means of a criminal action brought against the tutor (accusatio suspecti tutoris, crimen suspecti tutoris) before the praetor or the provincial 144

governor.

2.4.1.2     Termination of Guardianship

The tutela impuberum usually ended when the ward reached the age of puberty. Other ways of termination of the tutela were by the death of the ward; the capitis deminutio of the guardian; the fulfilment of a condition in accordance with which the guardian had been appointed; a successful claim of exemption (excusatio); and a successful accusatio suspecti tutoris.

2.4.2