Inst. i. 22 pr.: Nostra autem maiestas dignum esse castitate temporum nostrorum bene putavit, quod in feminis et antiquis impudicum esse visum est, i.e. inspectionem habitudinis corporis, hoc etiam in masculos extendere: et ideo sancta constitutione promulgata pubertatem in masculis post quartum decimum annum completum ilico initium accipere disposuimus, antiquitatis normam in feminis personis bene positam suo ordine relinquentes, ut post duodecimum annum completum viripotentes esse credantur.' (2) Impuberes' are divided into (a) infantes,' children under seven years, and The former are altogether incapable to act, the latter act in their own person with the concurrence (auctoritas) of the guardian, and are moreover capable of acquiring rights by independent legal acts, but cannot alienate, neither can they bind themselves." BOOK II. Part I. a D. 19, 1, 13, 46,6, 6; Gai. ii. 151. Paul.: In negotiis contrahendis alia causa 29; 46, 3. 148; habita est furiosorum, alia eorum qui fari possunt, 82; Ulp. xx. quamvis actum rei non intelligerent: nam furio- 12-3; infra, § sus nullum negotium contrahiere potest, pupillus omnia tutore auctore agere potest.-1. 5, D. de R. J. 50, 17.2 able to beget children; the Proculians, however, say that he has done so who has completed his fourteenth year; but Priscus considered that he only is of puberty in whom both these points combine, bodily condition, and number of years. 1 We have in our imperial character considered it in keeping with the decorum of our times, that what already our ancestors regarded as immodest in the case of women, i.e., the examination of their person, we extend to males also; and therefore, by the promulgation of a sacred constitution, we have settled that puberty in the case of males begin immediately after the completion of the fourteenth year, allowing the old rule to stand with regard to females as well founded, so that they should be regarded as marriageable after completion of their twelfth year. 2 In business contracts the relation of lunatics is regarded as different from that of those who are already able to speak, BOOK II. Gai. iii. §§ 107, 109: Pupillus . . . alium sibi obligare etiam sine tutoris auctoritate potest. -infans et qui infanti proximus est, non multum a furioso differt, quia huius aetatis pupilli nullum intellectum habent.1 Id. Pupillus licet ex quo fari coeperit, recte stipulari potest, tamen si in parentis potestate est, ne auctore quidem patre obligatur.-1. 141, § 2, D. de V. O. 45, I.2 Gai. ii. §§ 83, 84: -pupillis . . . meliorem condicionem suam facere etiam sine tutoris auc toritate concessum est. § Itaque si debitor pecuniam pupillo solvat, facit quidem pecuniam pupilli, sed ipse non liberatur, quia nullam obligationem pupillus sine tutoris auctoritate dissolvere potest. . ., sed tamen si ex ea pecunia locupletior factus sit et adhuc petat, per exceptionem doli summoveri potest.3 (3) No fixed limit of age underlies the distinction of 'infantiae proximi' and 'pubertati prox.' ('doli capaces') with respect to the capacity for delict of infantia maiores.' Gai.: Pupillum, qui proximus pubertati sit, although they do not yet understand the transaction of the matter; for a lunatic can enter into no business engagement, whilst a ward can transact anything under the authorisation of his guardian. 1 A ward. . . can bind another towards himself even without the concurrence of his guardian. . . . An infant and a child bordering on infancy do not differ much from a lunatic, because wards of this age lack understanding. 2 Although a ward can legally stipulate from the time that he has begun to speak, yet if he be under parental power, he does not incur liability even with the sanction of the father. 3 Wards are allowed to improve their condition even without their guardian's concurrence. Therefore, if a debtor pay money to a ward, he makes the money the ward's, but he is not himself released, because a ward can dissolve no obligation without his guardian's concurrence . . . but if he have become richer by such money, and yet sue for it, he can be met by a plea of fraud. ... capacem esse et furandi et iniuriae faciendae.- : Ulp. Iulianus saepissime scripsit, doli pupillos, qui prope pubertatem sunt, capaces esse.D. 44, 4, 4, 26.2 BOOK II. Part I. the curatela of Maior aetas' (majority), beginning with the completion of the twenty-fifth year; according to which, puberes are divided into 'maiores' and 'minores XXV annis,' or those of full age and minors. This limit of age only acquired juristic importance after the 1. Plaetoria (aetas legitima)." The capacity to act of 'puberes' a § 30. For is limited alone in respect of the maintenance of actions minors which (litis curator) and also, in case they have a curator, in connected itself respect of alienatory transactions; on the other hand, § 67. they can always validly bind themselves, since entry Perhaps into obligations does not at all suppose the possession civile. of property, much less independent right of disposi- © Cf. § 50, ad tion. Moreover, a minor can obtain the legal standing d See also § 114. of a full-aged person by imperial grant (venia aetatis). Inst. i. 23 pr.: Masculi puberes et feminae viripotentes usque ad vicesimum quintum annum completum, . . . licet puberes sint, adhuc tamen huius aetatis sunt, ut negotia sua tueri non possint.3 Ulp. Et ideo hodie in hanc usque aetatem adulescentes curatorum auxilio reguntur, nec ante rei suae administratio eis committi debebit, quamvis bene rem suam gerentibus.-D. 4, 4, 1, 3.* That a ward who borders upon puberty is capable both of theft and of inflicting insult. 2 Jul. has very frequently written that wards who are near to puberty are capable of fraud. 3 Puberes of the male sex and marriageable females, until they have completed their twenty-fifth year, . . . although they are of puberty, are still of such an age that they cannot look after their own concerns. And so nowadays young people are up to this age regulated by the help of curators, nor ought the administration of with this, see b с merely by ius fin. BOOK II. a C1. 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.o Gai. pubes vero qui in potestate est, proinde ac si paterfamilias, obligari solet.-1. 141, § 2, de V. O.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. © 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, 60.5 Those suffering from mental disease, or the insane d See Brown, s. and imbeciles d (furiosi, dementes, fatui), are absolutely unable to act, and are therefore also incapable of delict. 'Lunatic;' Paterson, p. 265; Westlake, pp. 47-48. 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. Pomp. Furiosi . . . nulla voluntas est.-D. 50, 17, 40.1 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, 20.3 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. There is no doubt that during the interval lunatics can effect sales and all other contracts they please. "By the Law of the Twelve Tables the spendthrift is for BOOK II. Part I. |