BOOK II. " § 60. • Cf. § 67. See Anct. Law,' pp. 160162; Steph. ii, 304-316; 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. debemus 53-male enim nostro iure uti non. qua ratione et prodigis interdicitur bonorum suorum administratio.2 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. b : 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. Guardianship is the right of protection, subject to Bell, s. Tutor' bidden the administration of his property; and this was originally introduced by custom. and Cura tory; West lake, ubi sup. 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; but in time it was converted into a public office (manus publicum), to undertake which was a duty (onus). a 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.' 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. I 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. 4 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 6 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. 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. TUTELA IMPUBERUM. $63. CAPACITY FOR GUARDIANSHIP. EXCUSATIONES. As regards the capacity to undertake guardianship, the only requisites in ancient time, as long as guardianship was still a private right of the guardian, were possession of citizenship and belonging to the male sex; in case of individual incapacity to exercise guardianship (because of immature age, bodily defects, mental infirmity), the person appointed could decline it, and another guardian was appointed in his stead. Imp. Diocletian. In servili condicione constitutum tutorem vel curatorem dari non posse, nullam habet iuris dubitationem.-C. 5, 34, 7.1 Inst. i. 14 pr., § 1: Dari autem potest tutor Gai. Tutela virile officium est.-1. 16 pr., Nerat. Feminae tutores dari non possunt, Nov. 118, c. 5: Mulieres etiam nos tutelae munus subire prohibemus, nisi mater vel avia That a man placed in the condition of a slave cannot be appointed a tutor or curator admits of no doubt in Law. 2 As tutor can be appointed, not only a pat. fam., but a fil. fam. also. But one's own slave can be legally appointed tutor in the testament, with freedom. 3 Tutela is a service rendered by a male. • Women cannot be appointed tutors, because this is an office for males, save as they specially petition the Emperor for the tutela of their children. BOOK II. BOOK II. sit. His enim solis secundum hereditatis ordinem etiam tutelam subire permittimus, si apud acta et secundis nuptiis et beneficio. SC. Velleiani renuntiaverint.' Paul. Complura senatusconsulta facta sunt, ut in locum furiosi et muti et surdi tutoris alii tutores dentur.-1. 17, D. de tut.2 According to later and Justinianean Law, the following persons are absolutely incapable (a) impuberes and minores, (3) muti, surdi, furiosi, (y) soldiers, bishops and monks ; while incapable relatively werecreditors and debtors of the ward. Minores autem XXV annis olim quidem excusabantur: a nostra autem constitutione prohibentur ad tutelam vel curam adspirare, adeo ut nec excusatione opus fiat; qua constitutione cavetur, ut nec pupillus ad legitimam tutelam vocetur nec adultus, cum erat incivile eos, qui alieno auxilio in rebus suis administrandis egere noscuntur et sub aliis reguntur, aliorum tutelam vel curam subire.-§ 13, I. de excus. 1, 25.3 1 Women also we prohibit from undertaking the office of tutela, with the exception of the mother or grandmother. For it is these alone we allow, according to the order of succession, to undertake tutela, if in the course of the proceedings they shall renounce both a second marriage and the benefit of the SC. Velleianum. 2 Many Sca. have resulted from the purpose to appoint other tutors in the place of an insane, and dumb, and deaf tutor. 3 Those who were under 25 years of age were formerly able to decline; but since our constitution they are forbidden to aspire to a tutela or curatela, so that neither is the right to decline of any use. By this constitution it is provided that neither a ward nor a minor shall be called to a legal tutela, since it was subversive of law for persons who are known to need the 'help of another' in the conduct of their own affairs, and are under the control of others, to undertake tutela or curatela of others. |