Legal Capacity in Roman Law

Legal Capacity in Roman Law

• Infancy (Infantia): Children lacked legal capacity. Unable to speak properly, they lacked intellectus (intelligence) and judicium (judgment).
• Infantiae Proximus: Could speak, but still lacked intellectus and judicium. Intellectus presumed at age 7 in later Empire.
• Pubertati Proximum: Lacked judicium, but could participate in transactions binding another party, not themselves, unless authorized by their tutor.
• Puberty (Pubertas): Full legal capacity at age 14 for males and 12 for females.

Women's Legal Capacity

• Inequality: Women were not equal to men under Roman law. They couldn't participate in public life, hold office, adopt, or engage in formal transactions without a tutor's authority in earlier periods.

Prodigals (Spendthrifts)

• Full Legal Capacity: Despite having full legal capacity, prodigals (spendthrifts) faced Praetorian interdiction. This prevented them from dissipating their property—especially in ways that could negatively affect their children's financial stability. They were required to have a curator.

Lunatics (Furiosi)

• Limited Capacity: Lunatics lacked full legal capacity. Contracts made during lucid intervals, however, were valid after the classical period. They needed a curator.

Tutela Impuberum

• Guardianship of Minors: This applied to those below puberty who were not under patria potestas. Tutors acted like contemporary trustees, responsible for the ward's property and wellbeing.
• Duties: Tutors had to manage property with utmost care (maxima diligentia), couldn't profit from the ward's wealth, and had to account for their actions. It was a public duty.
• Types of Tutors:
  • Testamentarius: Appointed in a will. The tutor could refuse but after Claudius, could only refuse on specified grounds.
  • Legitimus: Appointed by law. The tutors were the closest male relatives (Agnati) and optionally the father or master.
  • Fiduciarius: Two meanings: Relatives stepping in after estate.
  • Dativus: Appointed by magistrate. (e.g., Praetor Urbanus, the Plebeian Tribunes and Provinces)

Tutors and Curators

• Duties: Administration of the ward's finances, including investments, settling debts, and selling perishable goods.
• Interposition of Authority: Tutors represented wards who lacked judgment for legal actions.
• Education: Tutors responsible for the ward's education, appearing in court to discuss payment towards that expense.
• Protection: Oaths taken to safeguard the ward's property, backed by security.
• Removal: Potential removal for misconduct, fraud, or negligence.

Cessation of Tutelage

• Age of Puberty: Legal capacity was gained
• Death: Death of tutor or ward.
• Discharge: By magistrate.
• Conditions/Time Limits: Completion of terms in will.
• Misconduct: Removal for misconduct.

Tutela Perpetua Mulierum (Perpetual Tutelage of Women)

• Limited Capacity: Women, even those sui juris, were subject to perpetual tutelage.
• Role of the Tutor: Confined to auctoritas interponere (authorizing transactions).
• Modifications: Modifications by Justinian applying tutelage only to women under puberty.

Cura (Guardianship)

• Cura Minorum (Curatorship of Minors): Established to address the need for guardianship of those reaching puberty but lacking experience. Primarily focused on the management of the minor's property.

• Age of Majority: Full legal capacity at age 25.

• 'Vena Aetatis': Regulations for earlier independence for minors (20 males, 18 females). Though specific transactions still needed court approval.

• "Cura Prodigi" (Curatorship of Spendthrifts): Prevent prodigals wasting property.

• "Cura Furiosi": (Curatorship of Lunatics): Management of a lunatic's property.

• Other Curatorships: Appointment to manage others' affairs due to disability.

Cessation of Cura

• Age of Majority/Vena Aetatis
• Misconduct: Removal of tutor.