The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Explanation of Abbreviations
• Historical Introduction
• Commentarivs Primvs De Ivre
• [i. De Ivre Civili Et Natvrali.]
• [ii. De Ivris Divisione.]
• [iii. De Condicione Hominvm.]
• [iiii. De De Di Ticiis Vel Lege Aelia Sentia.]
• De His Qvi Svi Vel Alieni Ivris Sint.
• De Patria Potestate.
• De Manv.
• De Mancipio.
• Qvibus Modis Ivs Potestatis Solvatvr.
• De Tvtelis.
• De Cvratoribvs.
• De Cvratoribvs.
• Commentarivs Secvndvs De Rebvs Singvlis Et De Rervm Universitatibvs
• De Rervm Divisione.
• Rervm Corporalivm Adqvisitiones Civiles.
• Qvibvs Alienare Liceat Vel Non.
• De Pvpillis an Aliqvid a Se Alienare Possvnt.
• Qvibvs Modis Per Vniversitatem Res Adqvirantvr.
• [de Legatis.]
• De Fideicommissariis Hereditatibvs.
• Commentarivs Tertivs Intestatorvm Hereditates
• De Legitima Agnatorvm Svccessione.
• Consensv Obligationes.
• Addendum Formal, Abstract, and Simulative Dispositions.
• Commentarivs Qvartvs
• Appendix Additions and Amendments

DE CVRATORIBVS.

§ 197. After release from tutelary guardianship the estate of a minor is managed by a curator until he reaches the age at which he is competent to attend to his own affairs, and the same rule obtains in other nations, as we have already mentioned.

§ 198. Under similar circumstances the president of a province appoints a curator.

DE SATISDATIONE TVTORVM VEL CVRATORVM.

§ 199. To protect tutelary wards and those having a curator from the destruction or waste of their property by their guardians and curators, it is the function of the praetor to require such guardians and curators to give security for due administration.

§ 200. But this is not without exception, for testamentary guardians are not compelled to give security, as their integrity and vigilance have been approved by the testator; and curators who have not been appointed by any statute, but by the nomination of a consul or praetor or president of a province, are generally not required to give security, their selection being deemed sufficient evidence of their trustworthiness.

§ 197. In English jurisprudence there is no distinction corresponding to that between tutor and curator, impubes (pupillus) and minor (adolescens). Infant and minor are in English synonymous; guardianship continues to the attainment of majority, i. e. to the completion of twenty-one years of age; and after that the young of both sexes are considered to be capable of taking care of themselves, and are free from further control. At Rome wardship (tutela) ceased at puberty, or, as the law came to be defined, at the age of fourteen for males and twelve for females, ages at which the young manifestly continue to stand in need of guidance and protection, though according to Roman law they were then fully competent to administer their own property, and to dispose of it by will.

Such protection was provided for them partly by two statutes, partly by praetorian legislation. (1) The lex Plaetoria, or Laetoria, was as old as Plautus, who about 186 b. c. makes a youth exclaim: Lex me perdit quinavicenaria; metuunt credere omnes, Pseudolus, 303. ‘The statute with its five and twenty years prevents my getting credit.’ It made a crimmal offence, and subject to a criminal prosecution (judicium publicum, Cic. de Nat. Deor. 3, 30), what Cicero calls circumscriptio adolescentium, De Off. 3, 15; i. e. over-reaching and circumventing persons below the age of twenty-five. Such is Savigny’s interpretation of judicium publicum. Vermischte Schriften, 18. Ihering maintains that judicium publicum denotes in this passage not a criminal prosecution but an actio popularis; i. e. a civil action that could be instituted not only by the Minor but by a common Informer: and he quotes Dig. 26, 10, 1, 6 (cf. Inst. 1, 26, 3) Consequens est ut videamus qui possunt suspectos (tutores) postulare, et sciendum est quasi publicam esse hanc actionem, hoc est, omnibus patere. Dig. 12, 2, 30, 3, where quasi publica actio means an action similar to actio popularis, Geist des Romischen Rechts, § 52, nn. 158, 159. The circumscription of a minor, like fraudulent mal-administration by a guardian, rendered the person convicted thereof infamis. A contractor with a minor might secure himself against the penalties of the law, if a curator were nominated by the praetor to advise the minor in respect of the special transaction.

(2) As the lex Plaetoria was only applicable in cases of fraud (dolus malus, Cic. de Off. 3, 15), the protection it gave to minors was inadequate: accordingly, the praetor, besides allowing a minor to set up the plea of minority when sued in an action, proclaimed in his edict that he would relieve minors who had been damaged in consequence of inexperience and improvidence by rescission and cancellation of the proceeding (in integrum restitutio). To obtain this relief it was not necessary to prove any fraud on the part of the person who contracted with the minor.

(3) A person who wished to bring an action against a minor could compel him to obtain from the praetor a curator for the purpose of defending the particular suit; whose office ceased as soon as the special litigation terminated. Marcus Aurelius, under whom Gaius flourished, enacted that any minor who chose should be able to obtain from the praetor a general curator (generalis curator), who then should be charged with the general administration (generalis administratio) of his estate, Capitolinus, 10. In view of this option of the minor, Justinian could still say: Inviti adolescentes curatores non accipiunt praeterquam ad litem, Inst. 1, 23, 2. ‘Unless they choose, minors need not have a curator, except for a suit.’ A minor who had a curator could not aliene without the consent of his curator: he could incur an obligation without the consent of his curator, subject to his right of in integrum restitutio, though, unless he had a curator, persons would not be very willing to contract with him. Even the existence of a curator did not deprive the minor of his right of restitution, but of course it could not be obtained so readily as when he acted without the advice of a curator. The praetor allowed actiones utiles against a curator, corresponding to those to which a tutor was subject.

The tutor and curator were entirely separate functionaries: when women were under perpetual tutelage, a woman might have both a tutor and a curator. The curator of a minor must be distinguished from an agent (procurator), a person invested with certain rights and duties, which will be explained when we examine the different kinds of contract. An agent is governed by the instructions (mandatum) of his principal: a minor is under the direction of his curator: the employment of an agent is a private matter, purely voluntary on the part of the principal; the curator, like the tutor, holds a public function, and having one is in some cases involuntary on the part of the minor.

How exactly the lacuna in § 197 should be filled up is doubtful. We do not know what is the previous passage referred to.

Besides minors, lunatics and prodigals of whatever age were committed to the charge of curators. The cura of lunatics and prodigals is, indeed, older than that of minors, being regulated by the Twelve Tables, which directed that the nearest agnate should be curator of a lunatic, and manage the estate of an interdicted prodigal. In later times it was usual for the praetor or praeses provinciae to appoint a curator after inquest (ex inquisitione). Paulus has preserved the form of words in which the prodigal was interdicted: 3, 4 a, 7. ‘By custom the praetor interdicts a prodigal from the administration of his property in the following terms: As thy profligacy is wasting the estate of thy father and ancestors, and bringing thy children to destitution, I therefore interdict thee from the control of thy patrimony, and from all disposition of property.’

In integrum restitutio, a branch of the praetor’s equitable jurisdiction, and one of the most remarkable cases of his cognitio extraordinaria, has been mentioned more than once, and deserves here a brief explanation. Restituere in a general sense denotes any undoing of a wrong, any replacement of a person or his right in his or its original condition, whether by the voluntary act of the wrongdoer, or after action brought, and then either at the invitation of the judge (in virtue of the clause, ni restituat, 4 § 47), or in execution of a judicial sentence. But in the phrase we are examining it denotes the act, not of a private party, but of a magisterial authority. In integrum restitutio is the restitution by the praetor of a person to his original legal condition, in cases when some injury has been done to him by operation of law. The interposition in such cases of the highest Roman minister of justice bears some analogy to the use made of the prerogative of the Crown in our own early legal history. The function of thus overruling the law where it collided with equity was only confided to the highest magisterial authority, and even in his hands was governed by the principle that he was only supposed to act in a ministerial, not in a legislative capacity. Five grounds or titles (justae causae) to extraordinary relief (extraordinarium auxilium) were recognized and enumerated in the edict, Dig. 4, 1: intimidation (metus), fraud (dolus malus), absence, error, minority (aetatis infirmitas). Two, however, of these titles, fraud and intimidation, had additional remedies in the ordinary course of procedure (ordo judiciorum), where they were recognized as grounds of exception and personal action. Thus we find that a praetor called Octavius introduced the actio and exceptio metus mentioned by Cicero, Verr. 2, 3, 65, where the actio metus is called Formula Octaviana, and that the famous Aquilius Gallus, the colleague of Cicero, introduced the exceptio and the actio doli, Cic. de Natura Deorum, 3, 30.

The chronological order of the remedy by Action and the remedy by Restitution, like that of the historical relation of interdict to action, is disputed. Savigny, §§ 112, 191, 199, holds that the remedy by Restitution was older than the remedy by Action; while Vangerow, § 185, holds that the remedy by Action was older than the remedy by Restitution. As remedies they were very different in character, the effect of a grant of restitution being simply to reinstate a person in a legal right, which he had lost, not to give him damages on account of the violation of a right.

There are three conditions of Restitution: (1) The first condition is a Laesion by the operation of law, i. e. a disadvantageous change in civil rights or obligations brought about by some omission or disposition of the person who claims relief. This disadvantage may either consist in positive loss of acquired property, or in missing a gain which would not have involved, on the part of another, a positive loss of acquired property. An instance of such a laesion would be the loss of property by omitting to interrupt a usucapio or by omitting to claim an inheritance, or by making some omission in procedure. Cf. 4 § 57.

(2) A second condition is some special or abnormal position of the person who claims relief when such special circumstance is the cause of the loss which he has suffered. Thus a minor may be relieved against an injudicious bargain, but not against the casual destruction of the thing he has purchased, for this loss was not occasioned by his minority or inexperience. Such abnormal positions (justae causae) are compulsion, fraud, minority, absence, error.

(3) A third condition of relief is the absence of various disentitling circumstances. Thus relief is granted against the effect of legal dispositions and omissions, but not against the effect of delicts. Again the extraordinary relief of in integrum restitutio is not granted when the courts of law can administer an adequate remedy.

Originally capitis minutio of a defendant was ground for a restitution, 3 § 84; but this ceased at an early period to be anything more than a formal case of restitution; for rescission of the adrogation, adoption, emancipation, whereby a person’s debts were extinguished, was granted as a matter of course without any previous investigation (causae cognitio), and without any period of prescription like that which limited the right to pray for restitution.

This was, originally, annus utilis, and in the time of Justinian, quadriennium continuum or four calendar years, which begin to run, not from the date of the Laesion, but from the termination of the Causa, i. e. the abnormal position—minority, absence, compulsion, deception, error—whereby the Laesion was occasioned. Such at least is Savigny’s and Windscheid’s opinion. Vangerow holds that, except in Minority and Absence, prescription begins to run from the date of Laesion, 4 §§ 110-113, comm.

Of the five titles to restitution that we have enumerated, four, namely, intimidation, fraud, absence, error, implying equality of rights in all parties, belong to the law of Things or actions; title by minority, implying a privileged class or inequality of rights, belongs to the law of Persons.

As we shall have occasion in the next book, §§ 1-14, comm., to use the expression Rerum universitas, it may seem appropriate, before we quit the law of Persons, to give some explanation of the contrasted term, Personarum universitas. A University of persons in the private code is a fictitious or juristic person, composed generally by the union of a number of individuals, and capable like a natural individual (singularis persona) of the various rights and duties of property, that is to say, of potestas, patronatus, dominium, servitus, obligatio; and the power of suing and being sued (cf. Sohm, §§ 37, 38).

Some Universities have a visible existence or representation in a number of individual members, and are then called Corporations. An essential incident of Corporations is that their rights are not vested in the aggregate of individuals, but in the ideal whole, regarded as distinct from the members of which it is composed. Examples of such Corporations are municipalities (civitas, municipium, respublica, communitas), colleges of priests, of Vestal Virgins, corporations of subordinate officials, e. g. lictors, notaries (scribae, decuriae), industrial guilds, e. g. smiths, bakers, potters, shipowners, mining companies (aurifodinarum, argentifodinarum, salinarum, societas), contractors for the revenue (vectigalium publicorum societas), social clubs (sodalitates, sodalitia), friendly societies (tenuiorum collegia) (cf. Mommsen, de Collegiis et sodaliciis Romanorum; Karlowa, Rom. Rechtsg. 2 § 2).

Other juristic persons, not so visibly embodied in any natural individuals, e. g. temples, churches, hospitals, almshouses, or any other beneficent aims personified, are called by civilians, not Corporations, but Foundations.

The state, though not strictly speaking a juristic person, as invested with rights of property, was called in the time of the republic Aerarium. Under the first emperors, when the public treasure was divided between the emperor and the senate, the senate, as in a proprietary position representing the republic, was called Aerarium, while the treasury of the emperor was called Fiscus. At an uncertain date, but after the time of M. Aurelius, when all power was undisguisedly absorbed by the emperor, and the public chests were united, the terms Aerarium and Fiscus lost their distinctive meanings, and we find them used convertibly in the compilations of Justinian. The Fiscus, as a proprietary unit, came to have a special legal status and to be invested with peculiar privileges.

Juristic persons, though invested with rights of property, being mere fictions or ideal unities, are, strictly speaking, incapable of making a declaration of intention; for how can a fiction have an intention? It is true that slaves could acquire property and active obligations for their proprietors; but a slave could not aliene property, nor be himself subject to a civil obligation, nor be a party to a suit: and therefore Universities could not make such dispositions by means of their slaves. In this respect they resemble infants and lunatics; and as infants and lunatics must be represented by their guardians and curators, so juristic persons must be represented by the agents designated and defined by their constitution. The temporary representative of a Corporation, for the purpose of suing and being sued, was called Actor; a permanent representative for this purpose was called Syndicus, Gaius in Dig. 3, 4, 1. The constitutions of juristic persons are too various to admit of any general definition. But a juristic person was only bound by the act of its representative, in so far as such juristic person was benefited thereby. Dig. 12, 1, 27.

Although a Universitas is said to hold common property, the relation of the members of a Universitas must not be identified with that of Co-proprietors (communio). A co-proprietor is the separate proprietor of an undivided ideal portion, which he can aliene, mortgage, and otherwise dispose of; and which, by requiring a partition (actio communi dividundo), he can always reduce to a real portion: whereas the whole of the common property can only be dealt with if the co-proprietors are unanimous. Members of a Universitas, on the contrary, cannot demand a partition; and dispositions of the property of the Universitas can only be made by the vote of a majority, sometimes only by a majority of two-thirds of the members.

Every juristic person was originally incapable of being instituted heir, as Pliny mentions in the case of municipalities: Nec heredem institui nec praecipere posse rempublicam constat, Epist. 5, 7. ‘Neither an inheritance nor a legacy by praeceptio (which implies that the legatee is also heir, 2 § 217) can be left to a municipality.’ Juristic persons were not, as is sometimes stated by Roman jurists, subject to this incapacity simply because, owing to the idea of an artificial person not having yet been distinctly formed, they were regarded as personae incertae, 2 § 238, but also because, being fictions, they were incapable of entering on an inheritance (aditio), which involves acceptance on the part of the heir, and excludes representation. First the senate, disregarding this difficulty, allowed municipalities to be instituted heirs by their own liberti, Ulpian 22, 5: and subsequently the Emperor Leo, a. d. 469, gave to municipalities the capacity of being instituted her by any testator, Cod. 6, 24, 12. No general enactment extended this capacity to all Corporations, but some received it as a special privilege.

Originally municipalities, like other juristic persons, were incapable of taking bequests (legata), but subsequently they were declared capable by Nerva and Hadrian, Ulpian 24, 28; 2 § 195: and this capacity was extended to Collegia, Templa and Churches, Dig. 34, 5, 20. Towns were also capable of taking successions by fideicommissum, Ulpian 22, 5.

Under Christian legislation Pious Foundations (pia corpora) were made capable of taking hereditas and legatum: and testamentary dispositions of hereditas and legatum, that would otherwise have been void by the rule avoiding devises to incerta persona, e. g. a devise to the poor of a town who, not forming a corporation, were not persona certa, acquired validity from the pious purpose of the disposition.

The origin and extinction of Universitates, Collegia, &c. required the assent of the Emperor. The special privileges and incapacities which we have indicated, by their analogy to status, may perhaps justify the mention of Universities in the law of Persons. Savigny, §§ 85-102.

COMMENTARIVS SECVNDVS

DE REBVS SINGVLIS ET DE RERVM UNIVERSITATIBVS