BOOK II. a Cf. supra. Mod. Puberes sine curatoribus suis possunt ex stipulatu obligari.-1. 101, D. de V. O.' Paul. Obligari potest paterfamilias suae potestatis pubes compos mentis.-D. 44, 7, 43.2 Gai. pubes vero qui in potestate est, proinde ac si paterfamilias, obligari solet.-1. 141, § 2, de V. 0.3 Physical condition has in general no influence upon capacity to act, but the undertaking of a juristic act can for a time be hindered by infirmity (morbus sonticus). Corporal defects incapacitate for such jural acts as suppose integrity of the body; and so for instance, $45. As to impotence for marriage, or blindness, deafness and dumbness, for legal transactions which require seeing, hearing and speaking. castrat, see Inst. i. II, 9. e D. 45, I, I, and Ulp. xx. 13. Mod. Verum est, morbum esse temporalem corporis imbecillitatem, vitium vero perpetuum corporis impedimentum.-D. 50, 16, 101, 2.* : Iul. Sonticus autem existimandus est, cui cuiusque rei agendae impedimento est.-D. 42, I, 60," Those suffering from mental disease, or the insane d d See Brown, s. and imbeciles (furiosi, dementes, fatui), are absolutely 'Lunatic;' Paterson, p. 265; Westlake, pp. 47-48. unable to act, and are therefore also incapable of delict. e D. 9, 2, 5, 2. their own estate to be entrusted to them earlier, although they otherwise manage their affairs well. 1 Puberes can be made liable upon a stipulation even independently of their curators. "A pat. fam., being his own master, can become liable, who is of the age of puberty and in possession of his reason. 3 Now a pubes who is under power is wont to become liable just as a pat. fam. It is true that sickness is a temporary weakness of the body but crime a perpetual obstruction to the body. 5 Now every sickness is to be regarded as severe which is an obstacle to the performance of any matter. Gai. iii. 106: Furiosus nullum negotium gerere potest, quia non intelligit quid agat.2 Ulp.: Qui furere coepit, et statum et dignitatem, in qua fuit, et potestatem videtur retinere, sicut rei suae dominium retinet.-D. 1, 5, 20." But this does not apply to so-called lucid intervals (dilucida intervalla). Imp. Iustinian. Sancimus, . . . per intervalla, quae perfectissima sunt, nihil curatorem agere, sed ipsum posse furiosum, dum sapit, et hereditatem adire et omnia alia facere, quae sanis hominibus competunt.-C. 5, 70, 6.* Imp. Diocl. Intermissionis tempore furiosos venditiones et alios quoslibet contractus posse facere, non ambigitur.-C. 4, 38, 2.5 Prodigality, or dissipation, likewise is treated as a kind of mental infirmity or immaturity. A 'prodigus' is one deprived by magisterial decree of the management of his property because of dissipation. Ulp. Lege XII tabularum prodigo interdicitur bonorum suorum administratio; quod moribus quidem ab initio introductum est.-D. 27, 10, I pr. 1 A lunatic possesses no will. 2 A lunatic can transact no business, because he does not understand what he is doing. 3 He that becomes insane retains both his personal condition and the dignity with which he was invested, and is considered to retain his potestas, just as he retains the ownership of his property. 4 We enact that . . . during the intervals which are most perfect, the curator shall not act, but that the lunatic himself can, so long as he has his reason, both enter upon an inheritance and do all things else that are competent to men of sound mind. 5 There is no doubt that during the interval lunatics can effect sales and all other contracts they please. 6 By the Law of the Twelve Tables the spendthrift is for BOOK II. Part I. BOOK II. a § 60. • Cf. § 67. c See Anct. Law,' pp. 160162; Steph. ii. 304-316; Bell, s. Tutor' and Cura tory; Westlake, ubi sup. Paul. iii. 4, § 7: Moribus per praetorem bonis interdicitur hoc modo: QVANDO TIBI (?) BONA PATERNA AVITAQVE NEQVITIA TVA DISPERDIS, LIBEROSQVE TVOS AD EGESTATEM PERDVCIS, OB EAM REM TIBI EA RE COMMERCIOQVE INTERDICO.1 Gai. i. § 53-male enim nostro iure uti non debemus qua ratione et prodigis interdicitur bonorum suorum administratio. With respect to the capacity to act, he is in all respects on the same footing as the 'impubes infantia maior,' apart from the auctoritas of the guardian, which is impossible in his case. a Ulp. Is cui bonis interdictum est, stipulando sibi adquirit; tradere vero non potest, vel promittendo obligari.-D. 45, 1, 6.3 Id.: Iulianus scribit, eos quibus per Praetorem bonis interdictum est, nihil transferre posse ad aliquem, quia in bonis non habeant, cum eis deminutio sit interdicta.-D. 27, 10, 10.* AID SUPPLIED BY GUARDIANSHIP TO DEFECTIVE § 62. NATURE AND SPECIES OF GUARDIANSHIP. bidden the administration of his property; and this was originally introduced by custom. 1 An interdict is attached to a right course of conduct by the Praetor thus: 'Since you by vice waste property derived from your father and grandfather, and are bringing your children to penury, I do therefore forbid your engaging in that transaction and in business.' 2 for we must not make a bad use of our right; and upon this principle also are spendthrifts forbidden the management of their property. 3 He who has been forbidden the control of his property, acquires by stipulation; but he cannot alienate, or be rendered liable by promise. Jul. writes that they who are by the Praetor forbidden the control of their property can make over nothing to anybody, because they have nothing in ownership, since they have been forbidden the diminution thereof. public authority, by a private person of 'personae sui iuris' entirely or partially incapable to act, for the purpose of supplementing their defective capacity, and for the maintenance of their property. It was originally a relation of Power-analogous to patria potestas -certainly based upon 'fides,' and to be exercised in the interest of the ward; and was therefore a private (family) right; a but in time it was converted into a public office (manus publicum), to undertake which was a duty (onus). Gai. i. § 189: Sed impuberes quidem in tutela esse, omnium civitatum iure contingit: quia id naturali rationi conveniens est, ut is, qui perfectae aetatis non sit, alterius tutela regatur.1 Paul. Tutela est, ut Servius definit, vis ac potestas in capite libero ad tuendum eum, qui propter aetatem sua sponte se defendere nequit, iure civili data ac permissa.-1. 1 pr., D. de tut. 26, 1.2 Gell. v. 13: constabat, ex moribus populi Romani primum iuxta parentes locum tenere pupillos debere, fidei tutelaeque nostrae creditos.3 -et tutelam et curam placuit publicum munus esse.-pr. I. de excus. 1, 25.* -plerumque ubi successionis est emolumentum, ibi et tutelae onus esse debet.-tit. I. de leg. patron. 1, 17.5 1 But that those under the age of puberty should be in tutelage, happens to be the law of all communities, because it accords with natural reason that he who is not of full age should be controlled by the tutelage of another. 2 Tutelage is, according to the definition of Servius, a power and control over a free person, given and allowed by the i. c., for the charge of one who by reason of age cannot independently protect himself. 3 It was settled that, according to the customs of the Roman people, wards ought to have the first place alongside of parents, as confided to our trust and tutelage. It has been decided that both tutela and cura are public Infra. offices. In most cases where there is an advantage in succession there should also be the burden of guardianship. BOOK II. a § 151, tutoris auctoritas. Guardianship is divided into TUTELA of impuberes and mulieres, and CUBA of puberes; only the first was in the ancient time endued with that character under Private Law of which we have spoken. The most important differences between Tutela and Cura are the following— The Tutor, for the purposes of Property Law, always represents the whole personality of his ward; a Curator can be appointed also for a particular act in the Law, as well as a particular proprietary relation. Upon the Tutor devolves especially the supplementing of the ward's defective capacity to act; the essential function of the Curator is alone the management of the property (gestio). Further, concurrence in the entry into legal transactions consists for the Tutor in the 'auctoritatis interpositio'; for the Curator it is limited to mere consensus.' a Ulp. xi. I. Tutores constituuntur tam masculis quam feminis; sed masculis quidem impuberibus dumtaxat propter aetatis infirmitatem; feminis autem tam impuberibus quam puberibus et propter sexus infirmitatem et propter forensium rerum ignorantiam.' Inst. i. 14, 4: Certae autem rei vel causae tutor dari non potest, quia personae non causae vel rei datur. Ibid. i. 25, 17: Datus autem tutor ad universum patrimonium datus esse creditur.2 Ibid. i. 23, 2: Curator et ad certam causam dari potest.3 1 Tutors are appointed to both males and females; but to males only while under the age of puberty on account of their infirmity of age; to females, however, both as puberes and impuberes, as well on account of their infirmity of sex as on account of their ignorance of forensic matters. 2 But a tutor cannot be given for a determinate thing or matter, because he is given to the person, not to the matter or thing. Now the instituted tutor is regarded as instituted for the whole property. 3 A curator can be given also for a determinate case. |