Roman Law of Persons (2)

8/13/2019 Roman Law of Persons (2)

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James Grech

LL.B 1st Year

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R W LEE: The Elements of Roman Law

Roman Law of Persons

I: The First Diision of Persons: Free !en an" #laes

$%.The first division of persons is into free men and slaves. Slaves mat be born so or

become so. They may become so either jure gentium, i.e. by being taken captive, or

by civil law.Thus we distinguish between three modes of becoming a slave;

&1' (nfree )irth

&*' +ostile ,a-tre

&/' Rles of the ,iil Law

$0. &1' (nfree Birth: The general rule of the jus gentium was that the child followed

the status of the mother at the time of birth. This was contrary to the rule of civil law

which said that when the parents were married, the child followed the status of the

father at the time of conception. Thus, in principle, children born of a slave mother,

were themselves slaves. The uestion arose of what should happen when a motherchanged status from the time of conception to the time of birth. !n favour of freedom,

it was decided that if the mother was free at the time of conception or at any

subseuent time during the pregnancy, her child would also be free "in other words, a

child would only given the status of a slave if his mother had been a slave all the time-

at conception, during her pregnancy and at birth#.

2 &*' +ostile ,a-tre: This source of slavery applied not only to declared enemies,

but in principle to any foreigner, who was found within the $mpire unprotected by

any treaty or amicable agreement "i.e. he was not a %riend of &ome#.

1 &/' Rles of the ,iil Law: The old law said that fathers could sell their children

into slavery. This, however, was, as we shall see, modified. 'y the Twelve Tables,

debtors who could not pay their debt, could be sold into slavery trans Tiberim.

$nslavement also awaited those who evaded inscription into the census.

(nder the $mpire, slavery could come into e)istence in the following ways;

"a# *hen a free man upwards of + years of age, fraudulently allowed himself to

be sold into slavery with a view of sharing the profit


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"b# *hen a free woman persisted in co-habiting with a slave, the slave master

could report her to the raetor, who would ask her to stop doing so. !f she

persisted, the raetor could by judicial decree declare her to be the same

masters slave. /ere, there were economic connotations. Slaves were

considered to be property. Thus, the slave master wasnt happy that his slave

was being distracted, as well as 0used and 0enjoyed by another free personwithout paying him. Therefore, he would recourse to the raetor hoping that

the woman will buy the slave- otherwise she would either have to leave his

slave alone, or become a slave herself.

"c# Servi poenae "slaves of punishment#: Those condemned to death or to labour

in the mines lost their freedom.

"d# %reedmen who were guilty of serious ingratitude towards their patrons also

lost their freedom.

"e# arents were allowed to sell their children into slavery if they in e)tremepoverty. !n this case, they had a right of redemption.

1f these methods, 2ustinian, abolished "b# and "c#.

*. Ri3hts of !asters oer #laes: Slaves were in their masters power. The master

had the right of his slaves life or death, and everything acuired by the slave was

acuired for his master. /owever, under the $mpire, there was legislation protecting

slaves from inhuman treatment. 3 le) etronia prohibited masters from using their

slaves in arena fights with beasts. 3nother emperor, 3ntonius ius protected the

slaves life saying that a master who killed his slave without cause was liable as if he

had killed another mans slave. This same emperor enacted another law saying that if

a slave fled from his mater because of inhuman treatment, he could seek help from the

raetor, who "if he found the story to be true#, could order that the slave is sold from

his cruel master in terms that the slave should never revert to his masters rule.

/. #laer4 "e facto:So far, we have talked about the slaves condition de jure

"officially#. *hat about slavery de facto "in practice#4 Slavery was an important part

in &oman history. *hen &ome began to e)tend her conuests outside !taly, the

number of slaves increased tremendously. 2ulius 5aesar, for e)ample, is said to have

taken captive one million 6auls "in one occasion#. !n towns and country alike, slavery

replaced free labour. !n towns, the conditions of slavery were more tolerable. /ere, itwas the practice to allow slaves to deal with their peculium "the money earned# as

their own, and conseuently, be able to purchase their freedom. Sometimes slaves

were highly educated men. 3s a general note, one may add that their condition in the

later $mpire changed for the worse.

5. Was the Roman slae a thin3 or a -erson6 The answer is that he was both.

Since he could be owned, he was a res. 7et, he was also a human being, and this was

recognised in some aspects. Thus, to mention just one e)ample, the burial ground of a

slave was made locus religiosus "res religiosae#.

Slaves were subject to the criminal law. They were bound by delict, but during

slavery the appropriate action was instituted against the master unless he surrenderedthe culprit. 3fter manumission, they were personally liable.


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$. !f a man was not a slave, he was free; either born free "ingenuus# or made free

"libertinus#. Thus, there were three statuses in hierarchical order; free men, freedmen,

slaves. 7 free"man was one who ha" )een manmitte" from ciil law slaer4.

"i.e. a man returning home from foreign slavery did not become a freedman but a free

man regaining his prior position by postliminium#.

. !anmission: The status of slavery could be brought to an end by manumission,

i.e. when the slaves master took the appropriate steps to end his slavery. There were

various modes and we can distinguish these between formal modes and informal

modes.

%ormal 8odes:

"a# 9indicta : 'y a fictitious lawsuit. /ere, there would a ceremony in 5ourt where

the master would touch his slave with an iron bar "vindicta# and declare him to

be free. This would take place before a magistrate."b# 5ensu : by enrolment in the census.

"c# Testamento: 'y will. Testamentary manumission might be direct or indirect.

irect manumission consisted in a declaration saying, let my slave aul be

free


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0. Free"man8s 9)li3ations: 3 freedman had three relations with his patron-

obseuum "respect#, operae "services#, and bona "property#.

1bseuum "respect#: /e owed respect to his patron. /e could not bring an action

against him e)cept by permission of the praetor. 'esides, the freedman had the duty tohelp his patron if the latter was in need. !f he failed to do so, the patron could ask the

praetor to revert the freedman back to his former status- that of slave.

1perae "Services#: The freedman was usually reuired to render services to his

patron. The obligation to render services was usually acuired secured by oath.

'ona "6oods#: 'y the @aw of the Twelve Tables, if the freedman died intestate, the

patron would be his successor. @ikewise, if the freedman had children, the patron

would become their tutor. @ater law entitled the patron to a share of the freedmans

estate if he had left a will. 2ustinian provided that if the freedman had children, the

patron was not entitled to any share of his estate.

=ote: The status of freedman could be ended by imperial grant; the person concerned

could become a free man if the emperor so decided. /e could also revert to slavery if

he failed to perform the duty of obseuum.

%2%1. The +istor4 of !anmission: *e have thus seen that manumission afforded

escape from slavery. !n the last century of the &epublic, manumissions became

alarmingly numerous. 8anumission was cheap and easy, and often on their

deathbeds, masters manumitted many slaves. !ndiscriminate manumission such as this

had a bad effect upon the uality of the citiAen body- there were too many freedmen

roaming about. The $mperor 3ugustus sought to restrain it by the legislation which

we will mention now B this remained in force until 2ustinian.

The civil law recognised only formal manumission. !f manumission was informal, or

if the master had the slave among his goods without civil law title, the man remained

de jure a slave even though he may have been granted de facto liberty.

%5. Le; 7elia #entia: The le) 3elia Sentia "C 3# contained numerous other

provisions relating to manumission. articularly,

"a# it prohibited manumission in fraud of creditors "i.e. if the master wants to

manumit so that he can tell creditors that he owns nothing, and thus be able todefraud creditors#.

"b# This law also created a very inferior status for slaves who before manumission

had been subject to severe punishment. They could not make a will or take

under a will. 3lso, they could not reside within > miles off &ome under

penalty of being sold into slavery without hope of manumission, and in case of

a claimed manumission, they became slaves of the &oman eople. They could

not, under any, circumstances, become citiAens.


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"c# !f the master was under twenty years of age, or if the slave was under thirty

years of age, manumission could only take place by vindicta after a just cause

had been established to the satisfaction of a board of five &oman senators and

five knights. !n the first case "i.e. master under twenty#, failure to satisfy this

condition rendered the manumission void, whilst in the second case "slaveunder thirty#, the slave was granted only de facto protection.

"d# 3 slave manumitted under the age of thirty without complying with this

statute, could become a citiAen if he married before seven witnesses, and had a

son one year old.

%/. Le; Ffia ,aninia &* B,': This limited manumission by will to the proportion of

slaves owned, and to one hundred at the most. Till the time of the !nstitutes, this law

had been abrogated.

%ences of -atria -otestas as re3ar"s the -erson: 3nciently "before

the $mpire#, the power of the paterfamilias included;

"a# the power of life and death.

"b# the power of sale either trans Tiberim into foreign slavery or within the city inthe status of mancipium.

"c# the right to give the children in marriage and divorce them at pleasure.

"d# the right to give the children in adoption and to emancipate them at pleasure.

These powers disappeared during or before the $mpire. The power of life and death

was formally abolished by 5onstantine, who said that a parent, who kills his own

child, incurs the punishment for parricide. Sale into actual slavery survived in

5onstantines legislation permitting the sale of newborn children. 2ustinian allowed it

but only in cases of e)treme poverty. 8arriage and divorce, no longer remained an

e)ercise pf paternal power, but came to be regarded as uestions which concerned the

immediate parties. Similarly the consent of children "unless they were infants# cameto be necessary conditions for adoption or emancipation.


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%0. ,onse>ences of -atria -otestas as re3ar"s -ro-ert4: 3s regards property, the

son in power was originally in no better position than a slave. *hatever he acuired,

was acuired for the paterfamilias. @ike a slave, he might "but not enforceable# be

allowed de facto enjoyment of a peculium. Step by step the principle came to be

admitted that a filiusfamilias might have a right for a peculium. The steps were;

"a# %rom the time of 3ugustus, soldiers were allowed to keep as their own what

they acuired in military service "peculium castrense#.

"b# 5onstantine and later emperors e)tended this to what the son earned in various

civil employments or the service of the 5hurch "peculium uasi-castrense#.

"c# 3lso under 5onstantine, the fathers interest in property coming to the son in

inheritance from his mother "bona materna#, was reduced to usufruct. @ater

emperors e)tended this to all acuisitions coming from the mother or from her

relations "bona meterna generis#, or from any other source "bona adventicia#.Thus, such property did not pass into the hands of the father- he only had

usufruct on them. The son could not dispose of them during his fathers

lifetime but they became his absolute property when his father died. !f the son

died first, the property went to the father by right of succession, =1T by right

of peculium. !n case of emancipation, the father retained one third of the bona

adventicia "as price of emancipation#. 2ustinian substituted for this the usufruct

of a half "i.e. the father retained usufruct of half of the property after

emancipation#.

"d# espite all these steps, we might add that all these left unaffected the fathers

right to his own property confided to his son, and to gains accruing from it.

02. Patria Potestas came into e;istence in a ariet4 of wa4s? namel4:

&7' ,iil Law !arria3e

&B' Le3itimation

&,' 7"o-tion

&D' Im-erial Rescri-t

&7'

01. ,iil Law !arria3e: 2ustinian established that the reuirements for civil law

were as following:

"># the spouses must be ualified to contract a civil law marriage "jus

connubi#.

"+# they must be of marriageable age.

"E# there must be no rule of law forbidding them to marry or intermarry.

"C# children in power must have necessary consent.

"D# husband and wife must be consenting parties to the marriage.


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0*. &1' Js ,onn)ii: The husband must have the right to contract a civil law

marriage with the wife. 6enerally, the jus connubi was reserved for &oman citiAens

and @atins. 5hildren followed the status of their father, i.e. citiAen if he was citiAen,

@atin if he was @atin. !n either case, there was a marriage recognised by the &oman

courts. 'ut to constitute a civil law marriage, both parties to the marriage must

normally be citiAen because generally, the power of contracting a civil marriage "jusconubium# was reserved for &oman citiAens only. !n the first two centuries of the

empire, individual citiAens were sometimes granted power "as a special favour# to

contract a civil law marriage with a @atin or peregrine woman.

0/. &*' !arria3ea)le 73e: The parties had to be of marriageable age. This was fi)ed

to be fourteen for males, twelve for females. These ages later passed into 5anon @aw,

and conseuently into most modern systems of law.

05. &/' Lawfl !arria3e: The parties must be competent to marry and to intermarry.

5ertain people could not marry at all. These were:

"i# ersons already married.

"ii# 5astrati.

"iii# Soldiers during the term of service.

"iv# ersons who had taken vows of chastity or belonged to priests orders.

"v# !ntermarriage was principally forbidden between persons too nearly related

by birth, adoption or marriage. 8arriage was thus, forbidden between

ascendants or descendants by blood or marriage, or by relatives removed

by only one degree from the common ancestor.

!n the later $mpire, it was also forbidden to marry a deceased wife s sister

or a deceased husbands brother. This doctrine applied prohibitions not

only to blood relations but also to relationship by marriage "today this is

no longer so#.

"vi# 2ustinian also prohibit inter-marriage between godparents and godchildren,

as well as guardians and their wards "as to avoid abuses of wards marrying

the girls under their care to take away their property#.

"vii# atricians and plebeians up to CCD '5

0


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situation as it was in the past, where often marriages were arranged by the parties

families, without their knowing, let alone their approval.

0%. @o ceremon4 re>ire": =o ceremony, civil or religious, was reuired. 8arriage

was concluded by consent "=ote: /ere we are not speaking about 8anus 8arriage#. !t

was of course fundamental that the parties had the intention to live together ashusband and wife "affectio maritalis#. 1nly this distinguished marriage from

concubinage.

00. Wife8s #tats (nchan3e": &oman marriage of this type "which became universal

in the classical age# was a relation of remarkable of freedom#. 8arriage per se did not

effect a transfer of the wifes property to the husband- neither did it give him any right

of administration. The wife retained her contractual freedom, e)cept that she could

not make any gift to him, as he couldnt make any gift to her. 3s the wife controlled

her own property, so was she e)pected to provide for her own maintenance. !t was not

her husband s business to provide for her needs. Since this was not 8anus 8arriage,

then the husband was not in any way responsible for the wife.

121. Diorce: ivorce became very popular in the later &epublic. 3s marriage came

into e)istence by agreement and marital affection, so it was thought reasonable that it

should cease to e)its when these conditions were no longer present. This meant that

the marriage bond was severed by mutual consent ""iortim )ona 3ratia# or at the

will of either party &re-"im- tela tela tela#. This had to be done before seven

witnesses.

12*. There were cases in which marriage was terminated by operation of the law:

these were:

"a# !f the father adopted his sons wife or daughters husband, the marriage

became incestuous and was ipso jure, dissolved.

"b# @oss of citiAenship.

"c# $nslavement of either spouse dissolved the marriage.

"d# 5aptivity: 5aptivity did not dissolve the marriage, and if before five years

have passed, the husband returned, he was automatically re-established by

postliminium "so was his marriage#. !f, however, five years passed, and the

husband had not been known to be alive, the wife was free to remarry. 3partfrom this, absence without news, no longer how prolonged, was unaffected.

12/. #tats of ,hil"ren: &eferences has already been made to this subject, and we

had established that where there is conubium, the children follow the status of their

father at the time of conception. *here there is not, the children follow the status of

their mother at the time of conception "FG#. %rom this, it would follow that the child of

a peregrine father and a citiAen mother is a citiAen, beaus there is no conubium, and

thus the child follows the mothers status. !n the converse situation "citiAen father,

peregrine mother#, the child would be a peregrine. /owever, a le) 8incia established

that when one of the parents is a citiAen and the other a peregrine, the child should

always have the inferior status.


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125. ,onc)ina3e: 5oncubinage was a tolerated condition that was only

distinguished from marriage by the absence of the affectio maritalis. 3ny child would

be illegitimate.

1**1*/. !ans: @et us now speak about the system of marriage called manus

marriage, as opposed to free marriage. !n this marriage, the wife passed into the hand

of her husband with the conseuence that she was like a daughter to her husband, and

if he too was in power, like a granddaughter to his father. !f the husband died sui juris

and intestate, she shared the inheritance eually with her children "as if she was also a

daughter#. 8anus marriage was brought about by three ways:

"># 5onfarreatio : This was a marriage made in a religious way- it was reserved for

patricians only. The advantage of this type of marriage was the children out of

it could become priest of the temple.

"+# 5oemptio : This took place by the sale of the woman by the paterfamilias intothe hand of the man she was about to marry.

"E# (su : 'y use. !f a woman lived with a man for a whole year, she passed into

his hands under manus marriage. To break the one-year necessary for

usucapio, the wife stayed away from him for three nights each year so that he

wouldnt acuire a proprietary right over her. This was called the trinoctium-

trinoctio abesse. This may have been the starting point for free marriages.

3part from all this, manus could also arise without marriage. 5oemptio could be

made either for the purpose of marriage "as seen#, or for a woman to change her tutor.

She would make a coemptio to a male person "not her husband# and that would place

her in the position of his daughter.

&B'

12


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'y imperial &escript. 2ustinian included this if the concubine was already

dead, and thus, marriage was out of the uestion.

&,'

12$. 7"ro3ation an" 7"o-tion: This is another way in which patria potestas were

brought into e)istence. 3doption was of two kinds;

- of a person sui juris, specifically called adrogatio.

- of a person alieni juris, which had no specific name.

*e will see how these were affected and their legal conseuences.

12. 7"ro3atio:

!n the ceremony of adrogatio, the adopting father was asked whether he wished that

the person he was going to adopt should be his lawful son, and the person who was

going to be adopted was asked whether he wished this to happen. Then the eople

was asked whether it was pleased so to enact. Thus, 6aius says that adrogatio took

place by the authority of the eople


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112. ,onse>ences of 7"ro3atio: The legal conseuences of adrogation were as

follows:

"i# The person being adrogated "adrogatus# and any children in his power

passed in the power of the adrogator.

"ii# The property of the adrogatus and any debts due to him "his assets# passed

to the adrogator by a kind of universal succession."iii# ebts due by the adrogatus and the personal servitudes of usufruct and

usus were considered to be e)tinguished as a result of the e)tinction of the

old persona brought about by the adrogation.

111. 3s a result of "iii#, creditors could easily see their just claims defeated by an

operation "the adrogation# over which they had no control. So the praetor gave them

an action "utilis actio# against the adrogatus. This was based on the fiction that there

had been no change in status- thus the adrogator had to defend the action in his name.

!f he failed to do so, the praetor allowed the property which had come to the adrogator

from the adrogatus to be taken and given to the creditors to satisfy their claim. Thus,

2ustinian says, though the adrogator is not liable in law "to make up for the debt withhis own goods#, he can be sued the name of the son with the conseuences above

described

11/. 7"o-tion of Persons 7lieni Jris: The @aw of the Twelve Tables said that if

the father sold his son three times, the son shall be free from his fathers power.

3doption in this sense was thus effected by a series of sales and manumissions. This

was terminated by a decree of the magistrate declaring the child to be the child of the

adopting father. So mancipating "selling B?J# and manumitting three times terminated

the patria potesta of the father. The son would now be in the hands of the person to

whom he has been mancipated who will usually be the adopter. !f this person does not

wish to have the son in mancipium ">+C#, but as a son, then to complete the process

the son must be re-mancipated to the natural father, and claimed from him as a son in

a fictitious action brought by the adopter "in jure cessio#. %or the adoption of a

daughter or a grandchild, one mancipation was deemed to be enough.

115. Jstinian 7"o-tio Plena an" 7"o-tio !ins Plena: 'efore 2ustinian, the

effect of adoption was to pass the person being adopted "adoptatus# into the power of

the adopter. 2ustinian made a fundamental change by limiting this to the case of

adoption by a natural ascendant "e): by a paternal or maternal grandfather, or if an

emancipated son gave his own son in adoption to his father#. This was called a"o-tio

-lena"complete adoption# because it produced the old effects of adoption.

!n other cases, what is called a"o-tio mins -lena"incomplete adoption# there was

no change in the patria potesta "the son was already in the patria potesta of the

grandfather#, but the adoptatus acuired a right of intestate succession from the

adopting father. There was also the de facto change of family with some legal

conseuences such as reciprocal duty of support.


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&D'

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1*5. !anci-im &,iil Bon"a3e': This was the status resulting from the

mancipation of a free person. !t was generally made when a father made a no)al

surrender of his son "FE?#, and in some other circumstances which were mostly

momentarily. !n the case of no)al surrender, mancipium created a relation between

the person mancipated and the person to whom the mancipation was made. This

continued until he had by his labour, made good to the damage done. 8ancipium wassimilar to slavery but contrary to slavery trans Tiberim, this was made within &omes

boundary walls. 3 person in mancipium, however, remained a free man, though he

was in a uasi-servile condition.

Similarities between a slave and a person in mancipium:

/e acuired for the master.

/e could not be instituted heir by his master, unless at the same time given his

freedom.

/e was set free by manumission "censu, vindicta, or testamento#.

'y manumission, he became sui juris, and did not revert into his fathers power, the

mancipation having e)tinguished the potestas.

III: The Thir" Diision: #ome In"e-en"ent -ersons hae a ttor or

crator? others not.

1*$. Ttela &Ttorshi-#: Tutela is a right and power, given and allowed by civil law,

which is e)ercised over a free person "sui juris# who because of tender years "or se)#

cannot take care of himself. The aim of tutela was to ensure that these children were

not abused, as regards to both their persons and their property. 3s we will see tutelaapplied also for woman who were sui juris- however this had been abolished before

2ustinians time. *e will speak about women later ">E?#.

The idea of the tutor was given great importance in &ome. The tutor was considered

to be holding a public office. So the person appointed as a tutor especially those

appointed in a testament took it as an honour.

Tutela came into e)istence in various ways, and this resulted in having four basic

kinds of tutorship.

>. Testamentary

+. Statutory "legitima#

E. %iduciary

C. ative

1*. &1' Testamentar4 &Ttela Testimentaria': /ere, a paterfamilias could by will

appoint a tutor to sons or other descendants in power beneath the age of puberty, who

would become sui juris after his death "i.e. he could not appoint a tutor to his

grandsons if their father was still alive, for in the case of the paterfamilias death, they

wouldnt become sui juris. /e could appoint a tutor for them if their father was dead

or emancipated#. The tutor appointed could only be a male.


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1*%. &*' #tattor4 &Ttela Le3itima': !f the paterfamilias failed to nominate a tutor

in his will, tutela went to the nearest agnates, for it was considered that the persons

who would succeed "and thus benefit# from succession ab intestato, should also have

the right "or burden# of tutelage. @ater, 2ustinian by =ovel >>?, substituted agnates to

cognates "see @aw of Succession#. The tutor had to be male. !n this tutela, if there were no

people within the family willing or able to be tutors, then friends of the family wouldthen be looked at. The element of the clan was strong in &oman @aw. Thus, the

magistrate would first look at the family, then at the friends. !n this way, the child

would continue living more or less the same style of life as before.

129. (3) Fiduciary (Tutela Fiduciaria): If the emancipating father died leaving the

emancipated child still under the age, guardianship passed to the nearest male

relatives of the child agnatically related to the deceased (ex: unemancipated brothers,

uncles etc.) This is the less important of the categories of tutorship. Dr. Mifsud

onnici excludes it from the list and says that there are three basic categories.

1/2. &5' Datie &Ttela Datia#: !f there were no tutors available as family andfriends, an appointment was made by the magistrate. 3 mother could not, properly

speaking, appoint a tutor by will, because she had no potestas over her children.

/owever, she could leave property and appoint a tutor to manage it. The same could

be done by any person who left property by will to a person under the age of puberty.

Thus there were tutors appointed to the property rather than to the person. !n modern

systems of law, they are known as tutors nominate


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The idea of this authority was that the tutor increased or completed the deficient

capacity of the child due to his age. %or such events when the tutors consent was

reuired, he had to do so in person B sending a letter afterwards was ineffectual.

The authority to interpose was only possible when the child "though still under tutela#

was old enough to know what he was doing. The tutor could only give his finaljudgement, i.e. decide whether to consent or not to the childs proposal. Thus, it

reuired co-operation between both parties.

1//. &/' 7"minister the -ro-ert4: This function was that the tutor could administer

the childs property as trustee for the child. This had the disadvantage that whatever

the tutor did was done in his own name. !t bound and entitled him, not the ward. 7et

to counter this disadvantage, it had to be done in a detailed manner. The tutor had to

keep a book of accounts listing down what he was doing "e): buying, selling etc.#. 3t

the end of his office, as we have already seen, he had to render account of what he

did. 8aladministration of the childs property was very serious. 3ny citiAen of &ome

could go to the praetor and denounce a tutor on grounds of misconduct. 8isconductcould be either actual "already happened# or anticipated "i.e. the tutor is about to enter

into a seal which will definitely not be beneficial for the child#. !f found to be true, the

tutor could be removed from his office, given infamia, and also be sued for damages.

*hen the child became of age, he could sue his tutor for administering his property

wrongly, and he could sue him for double damages.

1ne other important thing that the tutor had to keep was an inventory showing a list of

the childs property, as well as an inventory showing a list of his won property. This

was made to ensure that the tutor wouldnt start to misappropriate property from the

childs estate into his own.

>EC. !n the early law, a testamentary might decline to act. 'ut since in the time of

2ustinian, tutela was a public duty, nobody could decline to accept e)cept by leave of

magistrate.

1/%. Per-eta Ttela !lierm &-er-etal ttela3e of women#: This tutela was for

women who were not married in 8anus and not in the potestas of a father or

grandfather. The husband could choose the tutor for the wife, or else leave it in her

discretion. The principal idea behind this was to keep the property in the family. The

reason commonly given was that women were light-headed, malleable and easily

imposed upon. The le) 2ulia freed from tutela a woman who had three chil"ren if she

was free, and a woman who had for chil"ren if she was free".

!n time, this tutela became a formality. *omen could in effect manage their own

affairs, however, the tutor would need to interpose his authority in certain deals and

negotiations. 1ften the tutor would be compelled by the praetor to give his consent

even if against his will. 7et the presence of the tutor always helped and this tutela was

created to protect women so as not to let people take advantage of affluent women.

*ith the presence of the tutor, the woman would be at least taking a second opinion,

even if ultimately, the decision lay in her own hands.

The concept of this tutela started to dilute more and more in time. The tutor was no

longer appointed for life, but for one specific task. 'esides, almost in all cases, thewomen were able to choose the tutor themselves, and not have one imposed on them.


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This tutela was given the final blow when in C> 3, all women were given the jus

liberorum.

1/%. +ow Ttela came to an en": Tutela ended when:

the child reached the age of puberty ">+-females, >C-males# by the childs death "natural or civil "loss of &oman citiAenship##

by the tutors death

for women, if the women got married in 8anus or if she died "naturally or

civilly#

1/0151. ,ra &,ratorshi-#:

,ra !inorm: 1bviously boys of fourteen and girls of twelve could not be left tomanage their affairs on their own. So, curatorship succeeded tutela. This was called

cura minorum and applied for children from the age of puberty till the age of twenty-

five. To be able to do business, a minor of this age bracket, had to apply to the

magistrate to appoint a curator for the transaction in uestion. @ater, the practice was

initiated to get a permanent curator appointed for the general management of his

affairs.

,rators "iffere" from ttors mainl4 in the followin3;

"># 5urators were appointed to administer the property, not to control the person.

"+# =obody was obliged to have a curator unless he was a party to litigation "i.e.he was doing business#.

"E# 3 curator could not strictly speaking be appointed by will B if he was, he had

to be confirmed by the magistrate.

5uratorship was not reserved only for minors. !t was also e)ercised over:

!nsane persons "cura furiosi#

rodigals "spendthrifts#

These categories were interdicted from the management of their property and put

under curatorship of their agnates. !t would be in the interest of the family to protect

the property of the madman or of the spendthrift. @ike tutela, if there was nobody inthe family, then cura would go to someone outside the family.

9ther crators were intro"ce" for:

eaf and dumb people "curator stulti#.

*hen someone was abroad for a long time, he could ask for a curator to be

appointed to take care of his estate.


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*hen an inheritance hadnt been cleared, i.e. nobody knew how the

inheritance is to be divided and there may claims to it, making it obscure to

whom the property belongs. !n this instance, a curator was appointed to

manage the estate until the matter was figured out.

5uratio 3dvente: !f a husband dies, leaving a pregnant wife, a curator wouldbe appointed to make sure that the child is born, i.e. to prevent abortions

"remember that for matters of inheritance, it would be in the interest of the

mother to have an abortion especially if that was the first child to be born#.

The curator, thus, very often, had to step into the shoes of somebody else and act on

his behalf "e): if the man was abroad or dumb or mad#. Thus, the full powers of

administration and representation were given to the curator. This means that in this

sense, the curators legal responsibility was greater than that of the tutor for he could

substitute the person "the curators duty was not just to be present#. 1bviously, the

law distinguished between different cases. !f a man was completely mad, then the

curator actually substituted him, but if a deaf person could still take decisions, the

there wouldnt be substitution.

5uratorship was seen as an office of the state. This meant that if there were losses

because of curators acts, the curator had to make good with his own estate.

The ,lose of ,ra:

!n the case of a curator appointed permanently, then the curator stopped from being so

if he died "naturally or civilly, or if he was removed from office due to misconduct.

Documents

Roman Law of Persons (2)