mittit. Eo facto revertitur in potestatem patris. Is eum § 89. § 6. 7 I. h. t. (1, 12): Nostra autem providentia et hoc in melius L. 3 § 1 D. de capite minutis (4, 5) (PAULUS): Emancipato filio . . . capitis minutio manifesto accidit, cum emancipari nemo possit, nisi in imaginariam servilem causam deductus. III. GUARDIANSHIP. § 90. The Different Kinds of Guardianship. The power of a guardian is that form of family power which takes § 90. the place of paternal power when there is no one to exercise the latter. Roman law distinguishes two kinds of guardianship, viz. tutela and cura. Tutor and curator are both alike charged with the care of the person as well as the property of the ward. The principle of the distinction, however, lies in the position which they respectively occupy in regard to the ward's property. The essence of tutela is the so-called 'auctoritatis interpositio,' i. e. the assistance of the tutor which is required for the conclusion of juristic acts. If, namely, the tutor gives his consent immediately at the time of the transaction, he thereby renders the ward capable § 90. of concluding the act himself. The principle of tutela is that it supplies a method by which a person of imperfect capacity of action is, so to speak, cured of this incapacity. Auctoritatis interpositio may be accompanied by the right of 'gestio' or administration, i. e. the right to make all such dispositions on behalf of the ward as are necessary for the general management of the property (a right of representation); but such a right is in no way essential to tutela. Tutela is employed in two cases: firstly, in the case of impuberes (tutela impuberum); secondly, in the case of women (tutela mulierum). In the former the tutor has, in the latter he has not, the right of gestio. The essence of cura, on the other hand, is the right of administration (gestio), i. e. the right to deal with the ward's property in his (the ward's) stead. The purpose of a cura is to exclude a person who is incapable of administering his property from such administration. The curator is, at the same time, the guardian and representative of his ward. There can be no curator without gestio. On the other hand, a curator has no auctoritatis interpositio, i. e. he cannot enable a person of imperfect capacity of action to act himself in spite of such incapacity. In Roman law there are three cases of cura: (1) the cura minorum (over persons of complete capacity of action); (2) the cura prodigi (over persons of imperfect capacity of action); (3) the cura furiosi (over persons of complete incapacity of action). If we bear in mind the principles just set out, we shall be able to determine at once what form guardianship assumes in Roman law in each separate case where it occurs. I. Guardianship of Minors. In the guardianship of minors we distinguish two stages: (1) the tutela impuberum; (2) the cura minorum. (1) Tutela Impuberum. In the tutela impuberum either the tutor acts on behalf of the ward (by virtue of his right of gestio), or the ward himself acts, if no longer infans, with the assistance of the tutor. Such assistance, however, transaction is to alienate is only required when the effect of the property or to impose a liability; for an impubes infantia major is § 90. fully capable of concluding acts by which he acquires something without the co-operation of the tutor (sup. p. 141). (2) Cura Minorum. The lex Plaetoria (about 186 B.C.) allowed a pubes minor xxv annis, who was fatherless, to apply on special grounds to the magistrate (the praetor) for a curator. Afterwards such applications came to be regularly made even without any special grounds. A minor pubes enjoys complete capacity of action, nor does the fact that he has a curator do away with such capacity; the effect of the appointment of the curator, however, is to deprive the minor of his capacity of disposition; in other words, the right to administer his property passes from him to the curator. All acts by which the minor improves his position are valid at once in the same way as they were before, but if he wishes to bind his property effectually by alienation or by a contract subjecting him to a liability, he must obtain the consent of his curator, which consent may be given before, during, or after the transaction (cp. pp. 142, 143). pr. I. de auct. tut. (1, 21) v. sup. p. 142. pr. I. de curat. (1, 23): Masculi quidem puberes et feminae viri potentes usque ad vicesimum quintum annum completum curatores accipiunt: quia licet puberes sint, adhuc tamen hujus aetatis sunt, ut negotia sua tueri non possint. § 2 eod. Item inviti adulescentes curatores non accipiunt, praeterquam in litem: curator enim et ad certam causam dari potest. II. Tutela Mulierum. In Roman law-even down to the classical period-every woman, though she be adult, who is not in patria potestate or in manu mariti, is, on account of her sex, subjected to the guardianship of a tutor, and is thus incapacitated from effectually binding herself by any transaction, and from concluding any negotium juris civilis (such as mancipatio, in jure cessio, or a will) without the concurrent interpositio auctoritatis of her tutor. The management of her property is in the woman's own hands, for a tutor mulieris has no § 90. gestio; but wherever such management brings with it the necessity for transactions of the kind just described', a woman cannot effectually act, unless her tutor gives his consent in praesenti Nevertheless the restraint involved in this rule had sunk to a mere form as early as the classical period. If the tutor refused to give his auctoritas voluntarily, the woman had the power to compel him. The only tutor who was not thus compellable and whose power was therefore a genuine one, was the tutor legitimus. But this very tutela legitima (in which the whole institution of the guardianship of women originated) had already been stripped of all practical importance by a lex Claudia (under the empire) which abolished agnatic guardianship". The whole system of tutelae mulierum disappears in the postclassical age. ULP. tit. 1 § 1: Tutores constituuntur tam masculis, quam feminis; sed masculis quidem impuberibus dumtaxat propter 1 Since the old civil law knew of no other juristic acts but negotia juris civilis, women were, in the early times, necessarily debarred from concluding any juristic act by themselves. 2 Tutela legitima mulierum is the name for three forms of the guardianship of women which were based on the Twelve Tables and their interpretatio. These three forms were (1) the guardianship of agnates (over unmarried female relations), (2) the guardianship of a patronus (over an unmarried liberta), (3) the guardianship of a parens manumissor (over his unmarried emancipated daughter or granddaughter, v. p. 393). The most important of these was the tutela legitima agnatorum, and this was the very one which the lex Claudia abolished. The legal position of a tutor legitimus mulieris was characterised by two rules: (1) he had the right to refuse his auctoritas for the purpose of enabling a woman to execute a will, to alienate by mancipatio, or to incur an .obligation by negotium civile (praeterquam si magna causa interveniat). But inasmuch as he had no power to prevent his ward's marrying, the latter could release herself from his guardianship by means of a marriage with manus. This was the origin of the so-called 'coëmtio fiduciae causa,' which was simply carried out 'tutelae evitandae causa.' The woman contracted a fictitious marriage by coemtio with a third party, who was bound by the fiducia, or trust-clause, to release her from the marriage by remancipation (p. 382), the effect being that the manumissor became the tutor of the woman (a so-called 'tutor fiduciarius'), but a tutor who, not being a tutor legitimus, had no power to veto her acts. (2) A tutela legitima mulierum could be assigned by in jure cessio to a third party called a 'tutor cessicius.' A tutela cessicia however terminated with the death or capitis deminutio not only of the tutor cessicius, but also of the cedens. This restricted operation of the in jure cessio by which all that was transferred was, in effect, the manage. ment of the guardianship business, confirms the conclusion to which we are led by other facts, viz. that the in jure cessio tutelae belongs to a more advanced period where an absolute assignment of the guardianship itself is excluded even in the case of a tutela legitima mulieris. Cp. sup. p. 32, n. 4. aetatis infirmitatem, feminis autem tam impuberibus, quam § 90. Eod. § 25 Pupillorum pupillarumque tutores et negotia gerunt, Eod. § 27 Tutoris auctoritas necessaria est mulieribus quidem in his rebus: si lege, aut legitimo judicio agant, si se obligent, si civile negotium gerant, si libertae suae permittant in contubernio alieni servi morari, si rem mancipii alienent; pupillis autem hoc amplius etiam in rerum nec mancipii alienatione tutoris auctoritate opus est. GAJ. Inst. I § 190: Mulieres, quae perfectae aetatis sunt, ipsae sibi negotia tractant, et in quibusdam causis dicis gratia tutor interponit auctoritatem suam; saepe etiam invitus auctor fieri a praetore cogitur. III. Cura Furiosi. The cura furiosi empowers and binds the curator to administer the property of a lunatic on his behalf. IV. Cura Prodigi. The cura prodigi differs from the cura furiosi in that, in this case, the ward (the prodigus) is capable of performing any act by which he merely acquires something. The appointment of the curator, however, precludes him from making any valid alienation or binding himself by any transaction; all such acts, in order to be effectual, must be concluded by the curator on behalf of the prodigus. V. Special Cases of Curae. In special circumstances a curator with limited authority may be appointed, e.g. for persons incapacitated by illness or old age (cura debilium personarum), or for the purpose of assisting a tutor who is already acting. § 91. The Appointment of Guardians. I. The Modes in which Guardians are appointed. (1) Tutela. The office of tutela may devolve on a person in one of three ways: |