Roman Law of Persons PDF

**Law of persons** - Concerned with explaining different "divisions"/ classifications of persons (free/unfree) (Suri juris/ alieni juris) - 1^st^ division: FREE MEN AND SLAVES -- slaves by captivity/ civil law **Slavery** - Children born of slave mother -- considered slaves -- rule...

**Law of persons** - Concerned with explaining different "divisions"/ classifications of persons (free/unfree) (Suri juris/ alieni juris) - 1^st^ division: FREE MEN AND SLAVES -- slaves by captivity/ civil law **Slavery** - Children born of slave mother -- considered slaves -- rule of jus gentium - Civil law followed father's status at time of conception - **Freedom at birth**: if mum was free at time of conception/ during pregnancy, child is also free with some statutory exceptions repealed by Hadrian and Vespasian - **Hostile capture**: foreigners within Roman Empire (R.E) unprotected by treaty -\> subject to slavery - **Civil law rules**: old law -\> father might sell his kids into slavery; within limits of Rome; insolvent debtors might be sold into slavery - **Enslavement**: could occur through: fraudulent sale, persisting in forbidden relationships with slaves, condemnation to death/ labour in mines... - **Rights of masters over slaves**: had complete control, include rights of life + death, ownership over everything acquired by slave - **Legislation under Empire**: aimed to protect slaves from extreme cruelty; ex: forbidding masters to expose slaves to fight with beats in arena without magistrates' authority **Slave law and conditions** - RL stipulated that slaves that killed another man's slave without cause -- punished - Emperor's rescript issued orders that badly treat slaves fleeing to his statute should be sold on terms preventing their return to master's power -- practice of holding inquiries in such cases - In early times, slaves were members of household and treated with consideration -- as Rome expanded its conquests, slave population grew. - Slave labour replaced free labour in town and country with conditions of slave-gangs on great estate being pitiable. - Town slavery -- more tolerable -- some slaves have their own possessions and able to purchase freedom - As Empire progressed, economic conditions deteriorated -\> exclusion of slaves from employment -- while influence of Christianity and philosophic ideals encouraged manumission \[release from slavery\] and led to decline in slavery's importance. **Slavery and Freedom** - Idea of personality implying legal rights + duties, developed slowly and took shape during Byzantine period under influence of ideas from theology - Moral claim of slave to be recognised as human -- acknowledged in various ways -\> ex: burial of slave making ground religious, and recognition of natural kinship for defining marriage degrees after manumission - Slaves: subject to criminal law, bound by delict, liable for contracts, with legal obligations becoming person after manumission - Justinian: all slaves were of one pattern -- there were exceptions -- including privileged slaves and freeman in good faith treated as slaves - Roman free individuals: **born free or made free** -- **distinction** between free-born and freedom based on **status of parents and manner of manumission**. - Process of **manumission** **allowed slaves to transition from status of slavery to freedom** **Modes and Consequences of Manumission** - Manumission ended slave's status of servitude when master set him free - Manumission modes: categorised as regular/ formal, irregular/ informal - **Regular/ formal modes** included: (a) vindicta process (b) censu or census enrolment, (c) testament/ will- based manumission - **Irregular/ informal modes** included: declaring freedom amongst friends, sending a letter gifting freedom, asking slave to dinner - Justinian added more modes of manumission: ex: appointing a slave as heir, adopting him as son, appointing him as tutor in a will - Manumission = voluntary act of master -- cases where manumission occurred independently of their wishes/ where slave became free independently of manumission **Manumission and Status of Freedom** - An ingenuus held superior position in public + private law compared to freedman - **Freedmen** -- excluded from Senate + magistracies + forbidden from marrying senators/ descendants - Freedman's relation to his patron -- owning respect, rendering services, succumbing to patronage rights (ex: succession/ entitlement to share of estate) - Status of freedman -- could be ended by imperial grant, granting equality with ingenuus and affecting patron's rights in situations. - Justinian's legislation granted freedom rights without prejudicing patron's rights -- renounced with obligation of obsequium and vulnerability to slavery for ingratitude reserved. - **Manumission offered escape from slavery** -- increased during last century of Republic - Augustus aimed to limit indiscriminate manumission through legislation -- negatively impacted quality of citizen body **Civil law in Ancient Rome** - Formal manumission required master with Quiritary title and effective ownership - Bare title did not give right to manumit - If manumit was informal and master only had bonitary ownership, the man remained slave, but praetor secured enjoyment of liberty - Lex Aedile Sentia -- added condition for manumission, requiring just cause and establishment to satisfaction of board of senators and knights - Colonies: form of civic government with inhabitants enjoying trading rights and use of Roman forms of contract and conveyance - **Latinitas**: condition allowing inhabitants to trade with Roman citizens on equal terms **Laws of persons in RL** - Inferior types of free status were not affected by constitutions of Caracalla -- extended citizenship to whole of Roman world - Justinian's constitutions bestowed Roman citizens to freedom without discrimination - This restored law to its ancient simplicity by reducing all freedmen to single type - Age h master was allowed to manumit by will was changed -- reduced to 14 for males at 12 for females - Principal divisions in the law of persons in Institutes are that all men are either free/ slaves - Freedom = a man's natural capacity of doing what he pleases unless he is prevented by force/ law - Slavery = institution of jus gentium -- one man is made property of another contrary to nature - Slaves are so-called cos military commanders order their captives **RL on Slavery and Freedom** - Slaves: used to preserve them alive and taken from enemy by strong hand -- **either born slave/ made slave through capture/ civil law** - No difference in condition of slaves -- **free men can be born free/ made free** - Free-born individuals: [born free from parents who are both born free/ both made free/ one free-born free and other made-free] - Unborn child should not be prejudiced by mother's misfortune -- if she was free at time of birth, even if she was slave at time of conception - Imperial constitutions often declared that manumission does not prejudice a person's birth-right - Freedmen: those manumitted from legal slavery -- originates from natural law where all men were born free **Manumission and freedom** - Jus gentium: 3 classes of men: free men, slaves, freedmen - Manumission occurs in various ways - Slaves can be manumitted by masters on any occasion, even on streets. - **3 types of freedme**n: **Roman citizens**, **Latins** (infrequent status), **dediticii** (status now abolished) - Constitution settles controversies of old law, granting Roman citizenship to all freedmen - Manumission not permitted in fraud of creditor - Insolvent master can still institute a slave as his heir with gift of freedom, if there's no other heir **Roman law on Manumission** - RL provides that if heir listed in will does not take inheritance, slaves can be named as necessary heirs to satisfy outstanding creditors and preserve reputation of deceased - If [slaved named is heir WITHOUT gift of freedom], law considers act of naming them [heir to imply gift of liberty] unless there's clear evidence to contrary - [Manumission/ act of freeing slaves = considered fraudulent if master is already insolvent/ will become so as result of act ] - A gift of liberty may still take effect even if estate lacks assets to satisfy creditors, unless manumitter intended to defraud them - Master under 20 years old requires permission from council to manumit slave without just cause; includes familial relations, employees, marriage - Once cause of manumission is approved -- cannot be revoked **RL on Minors and Slaves** - Romans under 20 could not give freedom to slave in their will - Exception allowed after age 17 and before 18 - Lex Fufia Caninia set limit on slaves freed by will - Limit considered obstacle and abolished - Romans: sui juris/ alieni juris - **Persons alieni juris**: under powers of others (masters/ parents) - **patria potestas**: institution unique to Romans - **power of Roman paterfamilias** -- included in power of life & death and power to sell a son **RL on Parental Power and Changes over time** - jus vitae necisque -- abolished by Constantine: decreed that [parent who killed his child should incur horrible penalty of parricide ] - Paulus in text cited Digest from Sententiae - treating the [abandonment of children as homicide] -- doubtful if practice was forbidden by law before 374 - Justinian retained sale into slavery -- [permitting sale of newborn in extreme poverty ] - Marriage and divorce -- from matter of arrangement between parents/ arbitrary exercise of paternal power -- became regarded as questions principally concerned immediate parties - [Consent of child became necessary condition of adoption/ emancipation ] - Property: son in power in no better position than slave - Whatever he acquired was acquired for paterfamilias - Principle admitted that filiusfamilias might have peculium not merely on sufferance but of right, leading to changes in succession rights and property ownership **Marriage** - **Bona adventicia**: son did NOT acquire right to dispose of inherited properties by will during father's lifetime, but **became his absolute property when his father died** - **Peculium adventicium**: should be **avoided** -- father's right to his property confided to son and gains accruing from it are unaffected - Emancipation allowed father to retain 1/3 of bona adventicia - Patria postestas came into existence through various means: civil law marriage, legitimation, adoption, imperial rescript - Conditions for civil law marriage include Roman citizens uniting according to law - males reached puberty, females being of marriageable age, consent of paterfamilias for children in power - Husband must have right of contract a civil law marriage with wife, with connubium, citizen status being critical factors -- conubium lost importance **Roman Marriage laws** - Parties must be [competent to marry and intermarry] - they CANNOT be already married, castrati, soldiers during term of service, those who took vow of chastity, admitted to priest's orders, within prohibited degrees of relationship - [Intermarriage forbidden] between patricians and plebeians, provincial governors, ladies of province, tutors and curators (or their sons) and their wards, [persons within prohibited degrees of relationships] - [Marriage forbidden] between [ascendents and descendants] and between collaterals any one of whom removed by one degree only from common ancestor - Same prohibition applied to affinity as to blood relationship - For time, paternal uncle allowed to marry niece, but law changed to prohibit this after Emperor Claudius' failed marriage to his brother's daughter. - Parties to marriage must be of [marriageable age] -- fixed at 14 for males and 12 for females according to Canon Law - If a [party to marriage was in power], [consent of paterfamilias] -- [necessary] - Grandson in power with un-emancipated father still living required consent of grandfather + father -- to not have a *suus heres* imposed upon him without consent - For granddaughter: grandfather's consent -- necessary and sufficient - Justinian decided in case of insane paterfamilias/ unreasonable refusal of consent -- consent of insane parent not necessary **Roman Marriage and Engagement** - **Dos and donation propter nuptias**: settled by [appropriate authority if consent unreasonably withheld ] - [Consent of parties -- assumed necessary] (Justinian's day and centuries before) - [Marriage] -\> [agreement to marry], often taking form of reciprocal stipulations/ sponsiones between intending husband and intended bride's paterfamilias - No ceremony, civil/religious necessary for marriage to be concluded by consent - **[Roman marriage = relation of remarkable freedom]** -- did not affect transfer of wife's property to husband/ give him right of administration. **Marriage and Contractual Freedom** - Marriage -- seen as **contractual agreement** -- wife had control over own property and expected to provide for own maintenance - **2 systems of marriage**: manu marriage and free marriage 1. **Manus marriage**: wife passing into hand of husband, making her daughter to husband and granddaughter to his faher 2. **Free marriage**: alternative system - Creation of manus marriage could occur through: confarreation, coemption, usu (use) - Gaius implied that concept of acquiring manus through use - becoming obsolete - Greater flamines and reges sacrorum -- involved in marriage process **Roman Marriage and Divorce Laws** - Marriage by confarreation -- type of marriage in Ancient Rome - Convention in manum -- recognised as existing institution - [Divorce in Rome -- initially rare] -- common in late Republic - [Marriages -- served by mutual consent/ will of either party ] - [Free marriage: only marriage in existence ] - [Manus marriage contracted by confarreation -- sometimes dissolved by diffarreatio] - Christian Emperor's decreed penalties for causeless divorces -- later declared void by Justinian - Cases where [marriage terminated by operation of law] (incest, loss of citizenship, enslavement) - Doubts about effect of captivity on marriage -- clarified under Justinian's laws **Marriage Laws in Roman Society** - If husband has been unaccounted for up to 5 years, wife was free to remarry - **Concubinage** -- permitted and only distinguished from marriage by absence of 'affectio maritalis' -- permanent, monogamous, illegal when practiced at same time as marriage - Marriage between non-Roman citizens -- valid by community's laws -- recognised by Roman courts -- children had fewer rights compared to full Roman citizens. - [Legitimacy of natural children -- achieved through subsequent marriage subject] to certain established by multiple emperors and further regulated by Justinian. - [Concubinage and illegitimate kids -- tolerated and discouraged by Christian Emperors] -- [legitimation by subsequent marriage allowed] - Church made no distinction between offspring of concubinage and promiscuous relations in this regard **Methods of Legitimation and Child Status in RL** - Institution of legitimation passed into modern system of law - Methods included: legitimation by **oblationem curiae** and **imperial rescript** per rescriptum principles - **Kids followed father's status at time of conception** - **no conubium: followed mother's status at time of birth** - Lex Minicia determined if one parent was peregrine and other citizen -- issue always had inferior status -- statute included Latin under head of peregrines except Junian Latins. - Lex Aelia Sentia -- caused doubt in status determination for marriage under it -- **senatus-consultum** by Emp Hadrian if issue of Latin father and citizen mother would be citizen - Adoption -- another method for creating patria potestas, 2 kinds: **aderogatio for person sui juris (free man), and adoptio for alieni juris (slave)** **Adrogatio and Adoption -- Ancient Rome** - **Adrogation**: the adoption of a sui juris (free man). - involved in **2 main changes**: that of **blood relation** and that of the **change of status**, that [from Sui juris to that of alieni juris under the Patria Potestas of the adoptive father.] - Intended to [keep Roman family alive in male line of descent], adrogation of females only admitted when institution changed character - **Adrogation of minors**: prohibited but later permitted under stringent conditions **Legal consequences of Adrogation** - Must be followed by inquiry and adrogator must provide security to restore family property or adrogatus in certain circumstances - Adrogatus -- **[NOT to be emancipated without just cause]** -- if adrogator died first, adrogatus received part of adrogator's estate - **Legal consequences**: adrogatus passing into power of adrogator, property and debts passing to adrogator, extinguishing of debts and personal servitudes belonging to adrogatus. - Inherited debts -- not affected and obligations (ex: delicto) become noxal liabilities of adrogator - Praetor gave creditors a utilia action against adrogatus to protect claims **Adrogatio and Adoptio in RL** - Adrogatio: mode of **universal acquisition** - Adoption in narrower sense: effected by series of sales and manumissions, terminating in decree of magistrate declaring child to be child of adopting father - Gaius describes adoption as involving father mancipating his son to someone, manumitting him vindicta, then reverting him to father's power -- breaks patria potestas - To complete adoption process -- son must be re-mancipated to natural father and claimed from him as son in fictitious action brought by adopter **Mancipatio, Adoption, Patria Potestas** - Mancipatio to 3^rd^ person -- made unnecessary with introduction of mancipatio to father in RL -- more convenient to make mancipatios to adopter, reducing dramatis personae from 3 to 2 - **Adoption of daughter/ grandchild** -- 1 mancipatio deemed sufficient for Justinian -- substituted an elaborate fiction with declaration before magistrate, magistral order, registration of Court, with consent of all parties involved. - Gaius + Justinian agreed that [adoption of person alieni juris is affected "by order of the magistrate"]- Justinian: process of adoption. - Before Justinian: adoption passed adoptatus into power of adopter -- Justinian limited this to cases of **adoption by natural ascendant** =\> fundamental change -\> **adoptio pleana** - In cases of **adoption minus plena** -- no change of patria potestas but **adoptatus gained rights of intestate succession to adopting father** - **Imperial rescript** -- way of **creating patria potestas** -- child born to Latin/ peregrine who obtained citizenship through this method might be declared under power -- otherwise remained sui juris - **Postliminium** = Roman concept of **paterfamilias**/ [child returning from foreign slavery, allowing them to resume/ revert to power respectively.] **Patria Potestas -- Ancient Rome** - **Allows fathers to have power + control over his kids + wife** - Roman citizen marrying non-citizen woman could have his kids considered non-citizens if women's true status was unknown -- **senatusconsultum** allow for cause of error to be proven, granting Roman citizenship to wife + kids - **Patrias potestas cease to exist**: upon [death of father], through [changes in status - loss of freedom/ citizenship], through [emancipation/ adoption of kids] - **Emancipation of son served agnatic relationship** -- not consanguineous one - Some public offices and dignities could affect relationship between father + son -- [Justinian's laws permitted liberation from patria potestas of those honoured with high dignities] **Legal status & Family Relations in RL** - Justinian discusses issue of emancipation of natural/ adoptive children by parents \[difficult to compel\] except for legitimate reason/ if child reached puberty - Trajan compelled emancipation by father who was ill-treating his son. - Capitis deminutio = **change of status** -- when [man loses freedom and citizenship] -- reduced to slavery, loses citizenship, retains freedom, or change in family status \[becoming alieni juris from sui juris -- **adrogration and emancipation**\] - RL recognises manus = institution subjecting 1 person to another's authority -- often closely linked to marriage - Under Justinian: manus - obsolete - Mancipium -- another related institute -- abolished by Justinian's legislation **RL Marriage and Civil Bondage** - Gaius: [coemption -- done for marriage/ by way of trust] (fiduciae causa) - Coemption allowed **women to change her tutor** -- she makes coemption to male person, appointing them as coemptionator -- coemptionator mancipated her to another person + manumitted her vindicta, becoming her fiduciary tutor. - Same trick used for evading burden of family sacred rites - [Married women could escape manus by sending letter of divorce], showing that manus was decaying institution at time - **Mancipum = status resulting from mancipation of free** person -- occur in cases: ex. noxal surrender, adoption, emancipation, or for women - Mancipation -- created relation continued only until delinquent had made good the damage - Person in mancipio -- in quasi-servile position -- like slave -- not treated contumely - Like slave, **person in mancipio could be acquired, instituted as heir, set free by manumission** - **Manumission -- made person sui juris, extinguishing** **potestas** **Patria Potestas and Power of Masters** - **Slaves under power of masters** - seen in **jus gentium** -- **masters have control over slaves**[, including power of life + death + acquisitions made through slave] - Historical evidence of masters having [extreme power over slaves], in modern times: [laws prevented] excessive violence + harsh treatment of slaves -- punishments for unjustified violence + directives to sell slaves under fair conditions if intolerable severity found - Kids born to parents in lawful wedlock = under power of parents -- legal power exclusive to Roman citizens, granting them control over their kids -- not available to others - Definition of wedlock/ marriage = union of male + female involving undivided habit of life **Marriage Laws in Roman Civil Code** - **Marriage = forbidden within certain degrees of relationship** -- including ascendants + descendants - Prohibitions exist vs marriage between brothers + sisters, collaterals \[less stringent than those regarding ascendants + descendants\] - Man may NOT marry brother's/ sister's daughter/ granddaughter, even if latter is related to him in 4^th^ degree - Paternal consent required for kids in power to marry in Roman civil law marriage - Even after tie of adoption dissolved, marriage still prohibited between adoptive parents + kids - Daughter of mad man can marry WITHOUT parental consent if father is insane - [Man must first emancipate his daughter before adopting son-in-law -- if he wishes to adopt daughter-in-law, must first emancipated his son] **Regulations on Marriage and Relationships** - Certain family relationships: forbidden to intermarry according to natural + civil law \[man may not marry father's sister, mother's sister/ great-aunt -- considered parents\] - Some marriages [not permitted out of respect for affinity] \[marriages between man + stepdaughter/ daughter-in-law -- considered as daughter to him by law\] - Man may not marry mother-in-law/ stepmother -- maternal relationship, even if marriage no longer exists - Marriage between husband's son by former wife & wife's daughter by former husband ALLOWED, despite presence of brother/ sister born from 2^nd^ marriage - Relationships of slaves \[father + daughter/ brother + sister\] -- obstacle in marriage - cases of forbidden relationships = found enumerated in Digest -- not complying with these conditions nullifies marriage, dower, and parental power over kids born from such unions. **RL on Unlawful Unions and Adoptions** - unlawful unions do not allow for dower claims/ return of persons who incur penalties set forth in imperial const. - kids may NOT be in power of parents from birth but brought to power after \[issue of free woman later under father's power cos marriage settlement\] - **emperor adopts persons who are su juris through imperial rescript = adrogation or magistrate adopts persons in power of parents** - [children give in adoption by natural father to another person does not transfer rights/ power to adoptive father but allows adoptive child right of succeeding ab intestato to adoptive father ] - when chid below puberty = adrogated by imperial rescript, adrogation must be showed as honourable and for pupil's advantage, and subject to conditions. **RL on Adoption and Adrogation** - adrogator may not emancipate child without inquiry and deserving of emancipation - adopting father ordered to leave ¼ estate if child disinherited/ unjustly emancipated - younger person cannot adopt person -- 18+ years - **man may adopt child as grandchild, great-grandchild, remoter descendant, even without son** - **man may adopt man's son as his grandson, or another man's grandson to be his son** - adoption of to be grandson **requires consent of son**, unless grandson's father is the one giving consent - **adopted son = assimilated to son born in lawful wedlock** - natural imponent MAY adopt, castrated person may NOT adopt - **women CANNOT adopt**, but do so [through imperial clemency as solace for loss of natural kids ] - adoption by imperial rescript =\> adrogated person's kids passing into power of adrogator - **slaves adopted by masters obtain freedom** **Ways Persons are Freed from another's powers** - **manumission of slaves = freedom of slaves from power** - sui juris = term describing **person not under power/ control of another** - **children become sui juris upon death of father** - **grandchildren become sui juris upon death of grandfather** if don't fall into power of father - deported person to island --\> loses citizenship and their kids cease to be in their power - if filiusfamilias deported to island --\> cease to be in power of parent, can regain former status if re-established by imperial clemency - **father relegated to island retains kids in his power + same for relegated kids** - if **man becomes slave of punishment -\> ceases to have his sons in power** - slaves of punishment include those condemned to labour in mined/ given over to wild beasts - military service, becoming senator, or consul -- NOT automatically free a son from power of father, except for pre-eminent rank of patrician -- releases son from paternal power from moment of granting imperial patent. **RL on Paternal Power** - if **father taken captive -- his power over his kids continues to exist** -- right of postliminium - persons taken captive by enemy, if return from captivity, recover all former rights - if prisoner recovered from beaten foe, deemed to have come back by postliminium - **kids = released from paternal power by emancipation** -- done through ancient ceremonial pretended sales/ imperial rescript - emancipation: now achieved by parents going directly to competent judges/ magistrates to release child/ grandchild - emancipating parent has same rights in respect to property of emancipated child as patron has \[property of freedman\] - ascendant can emancipate a son, retaining grandchild in power/ retain son in power, emancipating grandchild/ make all sui juris - if father gives son in adoption to son's natural grandfather/ great-grandfather, power of natural father determined and goes over adopting ascendasnt **RL and Capitis Deminutio** - even if daughter-in-law conceived by son and emancipated/ given in adoption by father-in-law -- child born under FIL power - capitis deminutio = [change of status] occuring in 3 ways: maxima, minor/media, minima - capitis deminutio maxima = when **person loses citizenship + freedom** \[condemned to slavery/ freedman who showed themselves ungrateful -- reduced to slavery\] - Capitis deminutio minor vel media = **citizenship lost, freedom retained** \[interdicted from water and fire, deported to island\] - Capitis deminutio minima = person's **status changed** \[person was sui juris becomes alieni juris/ conversely\] **retain citizenship + freedom** - no capitis deminutio occurs when slave manumitted \[slave has no status to lose/ change\] - change in social standing does NOT incur capitis diminution -- with being removed from Senate - capitis deminutio minima allows for continuation of rights of cognation but greatest capitis deminutio destroys this right as in case of cognate becoming slave/ deported to an island - when tutelage develops upon agnates -- goes to nearest degree and within that degree to all **RL: Tutela and Curiato** - RL recognised 2 types of guardianship: tutela and curation - Tutela: defined by Servius -- right + power exercised over free person who, due to tender years, cannot take care of themselves - Tutlea: came into existence in different ways -- testamentary and statutory forms - Testamentary tutela: appointed by paterfamilias in will to son/ other descendent in power - Statutory tutela: according to Law of 12 Tables, went to nearest agnates if no testamentary tutor appointed - Patron and their kids over emancipated persons underage and parents who emancipated their kids under age - **Fiduciary tutela** - if the child manumitted by the person in whose mancipium they were after the third sale -\> them quasi-patron of the manumitted child **Types of Tutelage in RL** - Emancipation by act inter vivos: used to [anticipate a parent\'s death + make] [provisions for the child\'s inheritance.] - If emancipating parent died \[child underage\] - [guardianship would pass to the child\'s nearest male agnatic relatives.] - Dative (tutela dativa) appointment made by the magistrate if no other tutors available. - Tutors: responsible for **providing education to wards + interposing authority, + administering the child\'s property.** **Functions and Authority if a RL Tutor** - tutor supplements ward\'s lack of capacity and allows them to contract in their own name, with principle that ward cannot incur liability without the tutor\'s authority. - Unaided, ward [CANNOT accept an inheritance, alienate property, or bind themselves by a contract involving reciprocal rights and duties without the tutor\'s authority.] - tutor augments/ completes the deficient capacity of the ward, and the authority must be given in person at the time of the authorized act. - **tutor: administers property as trustee for ward** - function having special inconvenience. - A ward must have intellectus to benefit from auctoritatis interpositio, - disadvantage of negotiorum gestio = whatever the tutor does is done in own name, binding and entitling them, not the ward. - Testamentary tutors - could decline to act in early law - Justinian's time: tutela = a public duty that might not be declined except by leave of the magistrate, with numerous grounds of excuse being admitted. - Under the Empire, the powers of a tutor - much restricted \[forbiddance of types of alienation without order of the Court\], - Constantine extended restrictions to valuable movables and houses. **Protection of Wards and Remedies Against Guardians' Misconduct** - later law: tutor\'s power of alienation without leaves of court - limited. - law had contrivances to **protect wards against maladministration and misconduct of guardians.** - Precautionary measures necessary - **anyone other than ward could take proceedings for the removal of a tutor on the grounds of misconduct**. - action for liquidation of accounts lay for double damages against a tutor guilty of embezzlement, and general remedy was the actio tutelae for any dereliction of duty. - tutor required to [furnish security for faithful administration, with guardians of larger estates under higher scrutiny and those selected by the testator exempt from security requirements.] - Tutor: make inventory of the pupil\'s estate - his property subject to general tacit hypothec - secure the pupil\'s claims. - Perpetua tutela mulierum = long-term guardianship of women. **Perpetual Tutelage of Women in Ancient Law** - legal institution aimed at keeping women\'s property - Gaius believed common rationale, that women are easily imposed upon due to the levity of their minds, was not as valid as it seemed - **Statutory tutelage** of patrons and parents was still a reality, especially for women - they **needed authorisation** for wills, property transfers, or obligations. - **Statutory guardians** of women had option to [get rid of the burden of guardianship by ceding it to another person] =\>cessicius tutor. - testamentary, fiduciary, and dative -- often [formalities for women of full age who managed their own affairs.] - Women allowed to change their tutors with authority of existing tutor by specific process. - jus liberorum: legal status related to [having children] - sometimes given to women by imperial favour even if did not meet the necessary qualifications. - **perpetual tutelage** of women - further diminished by constitution of Honorius and Theodosius - provided all women with the jus liberorum **RL of Curatorship** - **Curatorship succeeds tutelage** and originates from a lex Platoria - Minors under 25 - protected by law, allowing them to plead them lex in legal actions. - **Curators: administer property**, not control the person, unlike tutors. - Minors: free to contract up to the time of Diocletian - possibility of obtaining restitutio in integrum if contract was prejudicial. - Minors with permanent curators - like to pupils - had same liabilities, rights, remedies. - Minors required consent of curator to incur more than a natural obligation, and ratification had the same effect as antecedent consent. - Consent not only function of the curator -\> had general power of administration, like tutors for females ages of 12-25 **Curatorship and Tutelage** - Empire: the term of full age (25) -- occasionally anticipated by special imperial licence, given to those who completed their 20^th^ year \[men\] and 18^th^ year \[women\] - Those granted this privilege had all usual rights of majority but could not alienate/ hypothecate immovable property without decree of Court. - convenient for young man who had not reached full age to take over administration of dead father\'s affairs/ release a woman from curatorship upon marriage. - institution = venia aetatis - adopted with variations by modern systems of law. - **Tutelage = right and power exercised over an independent person, given and allowed by the civil law for the protection of one who on account of their tender age is not able to be their own defender.** - parents are allowed to give tutors by will to children in power who have not yet reached puberty, and to grandchildren only if on the grandparent\'s death they will not come under the power of their own father. **Appointment of Tutors by Will & Statutory Tutelage of Agnates** - Posthumous children must be included in a will\'s appointment of tutors, as are deemed to be already born for many purposes. - Tutors may be appointed to a paterfamilias or a filiusfamilias by will. - testator can appoint his own slave as a tutor- implying gift of freedom/ explicitly give freedom at the same time. - If a person less than 25 years/ madman is appointed as tutor - appointment takes effect when they reach 25/ recover sanity. - tutor may be appointed until/ from certain time, but not for a certain property/ purpose. - designation of \"daughters\" / \"sons\" as tutees in will includes born children, but inclusion of grandchildren depends on the wording used. - If **no tutor has appointed by will, the Law of the Twelve Tables designates agnates as statutory tutors.** - Agnates = **persons related to the individual through males** \[brother born of same father, grandson of a brother, father\'s brother, grandson of father\'s brother\] **Types of Tutelage in RL** - **Females = cognates** \[not agnates\] **connected by natural tie of relationship**. - your father\'s sister\'s son is your cognate, not your agnate, and viceversa. - **Agnates = called to the succession in event of intestacy** -\> if deceased made no will concerning the appointment of a tutor. - Rights founded on agnation = almost always destroyed by capitis deminutio -institution of civil law - rights of cognation are not always affected. - Tutelage of freed persons of either sex belongs to patrons and the patrons\' children, drawn from the law by interpretation. - statutory tutelage - when parent has emancipated a child below the age of puberty. - Fiduciary tutelage - occurs when a parent dies and has male children, who become the fiduciary tutors of their siblings. **Roman Legal Procedure for Appointment of Tutors and Curators** - Freedman, after his master\'s lifetime - NOT fall under master\'s children\'s power - Qualified fiduciary tutors must be of full age - **Tutors - appointed by testament subject to condition/ from certain date** - [substitute tutor - appointed under same statutes] - Appointment of tutors ceased when consuls began appointing tutors to pupils after inquiry - Current practice in Rome involves appointments by the praefect of the city / praetor within their jurisdiction - Our constitution provides for appointments if the estate of pupil/ minor amounts to 500 aure **Authority and Termination of Tutelage** - pupil CANNOT accept inheritance, petition for possession of goods, take up fideicommissary inheritance without tutor\'s authority, even if profitable and does not entail any loss. - **tutor must be present at time of actual** **transaction** - give authority - authority given after transaction/ by letter is not effective. - when an action is pending between tutor +pupil -- curator appointed to take place of tutor - **action proceeds with intervention of curator**. - pupils of either sex = **freed from tutelage when they reach puberty** \[fixed at completion of the 14^th^ year \[males\] and at the completion of the 12^th^ year \[females\] **RL regarding Tutelage and Curatorship** - Children **before reaching puberty** can be given in adrogation, deported, reduced to slavery by a patron, or taken captive by the enemy. - If tutor appointed by will until certain condition is realised - role ceases when the condition takes effect. - **Tutelage = determined by death of tutor/ pupil**. - **Tutelage ends if tutor suffers capitis deminutio - loss of freedom/ citizenship.** - If tutor incurs the least capitis deminutio, statutory tutelage ends - other kinds of tutelage remain unaffected. - Any **capitis deminutio of the pupil puts an end to tutelage**. - If tutor = appointed by will up to a certain time - role ceases when that time arrives. - Tutelage = determined if tutor is removed on suspicion of misconduct/ excused for just cause and relieved of the burden of administration. - Individuals of certain ages have curators until they reach 25 years \[not yet of age to manage their own affairs\] - **Curators: appointed by same magistrates as tutors** and confirmed by an order of praetor or governor if appointed by testament. - Persons below age of 25 - not obliged to have curators except for the purposes of a lawsuit. - Curators appointed to individuals of feeble mind, deaf and dumb, suffering incurable disease - unable to attend to their affairs. **Security in Tutorship and Curatorship** - **Tutors + curators = appointed to act on behalf of others** - in cases of absence/ incapacity, the praetor/ governor appoint a substitute to act in their place, while original tutor remains responsible. - **praetor requires tutors + curators to give security for** administration - prevent the dissipation/ diminishment of property of pupils and those under curatorship. - **Testamentary tutors: not always required for security** - deemed chosen for fidelity and capacity by the testator, and tutors appointed after inquiry are also exempt from the requirement. - If multiple tutors appointed - one can offer to give security and administer the estate alone - If the tutors cannot agree, praetor intervene. - In event of neglect or inadequate security provided by tutors and curators - subsidiary action available against magistrates who accepted the security and extend to their heirs. - If tutors + curators fail to give security - coerced by execution upon their property- this action does not lie against certain officials, such as the praefect. **Excuses of Tutors or Curators** - Tutors + curators: excused from duties due to reasons - having certain number of surviving children/ being absent on State business. - Litigation between the guardian and the minor is only an excuse if it relates to entire property or inheritance. - Poverty, ill-health, and illiteracy = valid excuses for not taking up guardianship role. **The Administration of Guardianships and Juristic Persons** - Those managing administration of guardianships \[tutors\], must do so honestly and with care. - Fraudulent actions in administration =\> removal and punishment, regardless of offering security. - person under suspicion due to character may be removed if found to be fraudulent in guardianship administration. - Juristic persons \[corporations\] - complicated and controversial topic. - The classical notion of a corporation as a legal entity distinct from its members was familiar to the lawyers of the classical age. **Roman Law of Persons** - question of ownership of an inheritance created with no indication of a trustee remains unclear. - The view attributing juristic personality to a vacant inheritance (hereditas jacens) is no longer favoured. - early law: inheritance might be acquired by usucapion, although the acquirer knew they had no title to the property, until this practice was abolished by Emperor Hadrian. - Gaius: things belonging to an inheritance before anyone becomes heir are no man\'s property (nullius in bonis). - law oscillated between the view that the title of the eventual heir related back to when the inheritance became vacant and the contrary view that the inheritance represented the person of the deceased. - idea emerged that the inheritance was a person, hereditas dominae locum obtinet - towards recognizing it as juristic person - Even if the inheritance was considered a person- remained a limited capacity person. - influence of RL of persons on modern systems of law = due to inheritance rather than reception, as the Law of Persons does not readily lend itself to export and import.