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- The Institutes of Justinian - 6/41 -

returned, he recovered the guardianship by the law of post- liminium. 3 But guardians have now ceased to be appointed under these statutes, the place of the magistrates directed by them to appoint being taken, first, by the consuls, who began to appoint guardians to pupils of either sex after inquiry into the case, and then by the praetors, who were substituted for the consuls by the imperial constitutions; for these statutes con- tained no provisions as to security to be taken from guardians for the safety of their pupils' property, or compelling them to accept the office in case of disinclination. 4 Under the present law, guardians are appointed at Rome by the prefect of the city, and by the praetor when the case falls within his jurisdiction; in the provinces they are appointed, after inquiry, by the governor, or by inferior magistrates at the latter's behest if the pupil's property is of no great value. 5 By our constitution, however, we have done away with all difficulties of this kind relating to the appointing person, and dispensed with the necessity of waiting for an order from the governor, by enacting that if the property of the pupil or adult does not exceed five hundred solidi, guardians or curators shall be appointed by the officers known as defenders of the city, along with the holy bishop of the place, or in the presence of other public persons, or by the magistrates, or by the judge of the city of Alexandria; security being given in the amounts required by the constitution, and those who take it being responsible if it be insufficient.

6 The wardship of children below the age of puberty is in ac- cordance with the law of nature, which prescribes that persons of immature years shall be under another's guidance and control. 7 As guardians have the management of their pupils' business, they are liable to be sued on account of their administration as soon as the pupil attains the age of puberty.


In some cases a pupil cannot lawfully act without the authority of his guardian, in others he can. Such authority, for instance, is not necessary when a pupil stipulates for the delivery of pro- perty, though it is otherwise where he is the promisor; for it is an established rule that the guardian's authority is not necessary for any act by which the pupil simply improves his own position, though it cannot be dispensed with where he proposes to make it worse. Consequently, unless the guardian authorizes all trans- actions generating bilateral obligations, such as sale, hire, agency, and deposit, the pupil is not bound, though he can compel the other contracting party to discharge his own obligation. 1 Pupils, however, require their guardian's authority before they can enter on an inheritance, demand the possession of goods, or accept an inheritance by way of trust, even though such act be advantageous to them, and involves no chance of loss. 2 If the guardian thinks the transaction will be beneficial to his pupil, his authority should be given presently and on the spot. Subsequent ratification, or authority given by letter, has no effect. 3 In case of a suit between guardian and pupil, as the former cannot lawfully authorize an act in which he is personally concerned or interested, a curator is now appointed, in lieu of the old praetorian guardian, with whose co-operation the suit is carried on, his office determining as soon as it is decided.


Pupils of either sex are freed from guardianship when they reach the age of puberty, which the ancients were inclined to determine, in the case of males, not only by age, but also by reference to the physical development of individuals. Our majesty, however, has deemed it not unworthy of the purity of our times to apply in the case of males also the moral considerations which, even among the ancients, forbade in the case of females as indecent the inspection of the person. Consequently by the promulgation of our sacred constitution we have enacted that puberty in males shall be considered to commence immediately on the completion of the fourteenth year, leaving unaltered the rule judiciously laid down by the ancients as to females, according to which they are held fit for marriage after completing their twelfth year. 1 Again, tutelage is terminated by adrogation or deportation of the pupil before he attains the age of puberty, or by his being reduced to slavery or taken captive by the enemy. 2 So too if a testa- mentary guardian be appointed to hold office until the occur- rence of a condition, on this occurrence his office determines. 3 Similarly tutelage is terminated by the death either of pupil or of guardian. 4 If a guardian suffers such a loss of status as entails loss of either liberty or citizenship, his office thereby completely determines. It is, however, only the statutory kind of guardianship which is destroyed by a guardian's undergoing the least loss of status, for instance, by his giving himself in adoption. Tutelage is in every case put an end to by the pupil's suffering loss of status, even of the lowest order. 5 Testa- mentary guardians appointed to serve until a certain time lay down their office when that time arrives. 6 Finally, persons cease to be guardians who are removed from their office on suspicion, or who are enabled to lay down the burden of the tutelage by a reasonable ground of excuse, according to the rules presently stated.


Males, even after puberty, and females after reaching marriage- able years, receive curators until completing their twenty-fifth year, because, though past the age fixed by law as the time of puberty, they are not yet old enough to administer their own affairs. 1 Curators are appointed by the same magistrates who appoint guardians. They cannot legally be appointed by will, though such appointment, if made, is usually confirmed by an order of the praetor or governor of the province. 2 A person who has reached the age of puberty cannot be compelled to have a curator, except for the purpose of conducting a suit: for curators, unlike guardians, can be appointed for a particular matter. 3 Lunatics and prodigals, even though more than twenty-five years of age, are by the statute of the Twelve Tables placed under their agnates as curators; but now, as a rule, curators are appointed for them at Rome by the prefect of the city or praetor, and in the provinces by the governor, after inquiry into the case. 4 Curators should also be given to persons of weak mind, to the deaf, the dumb, and those suf- fering from chronic disease, because they are not competent to manage their own affairs. 5 Sometimes even pupils have curators, as, for instance, when a statutory guardian is unfit for his office: for if a pupil already has one guardian, he can- not have another given him. Again, if a testamentary guardian, or one appointed by the praetor or governor, is not a good man of business, though perfectly honest in his management of the pupil's affairs, it is usual for a curator to be appointed to act with him. Again, curators are usually appointed in the room of guardians temporarily excused from the duties of their office.

6 If a guardian is prevented from managing his pupil's affairs by ill-health or other unavoidable cause, and the pupil is absent or an infant, the praetor or governor of the province will, at the guardian's risk, appoint by decree a person selected by the latter to act as agent of the pupil.


To prevent the property of pupils and of persons under curators from being wasted or diminished by their curators or guardians the praetor provides for security being given by the latter against maladministration. This rule, however, is not without exceptions, for testamentary guardians are not obliged to give security, the testator having had full opportunities of personally testing their fidelity and carefulness, and guardians and curators appointed upon inquiry are similarly exempted, because they have been expressly chosen as the best men for the place. 1 If two or more are appointed by testament, or by a magistrate upon in- quiry, any one of them may offer security for indemnifying the pupil or person to whom he is curator against loss, and be pre- ferred to his colleague, in order that he may either obtain the sole administration, or else induce his colleague to offer larger security than himself, and so become sole administrator by preference. Thus he cannot directly call upon his colleague to give security; he ought to offer it himself, and so give his colleague the option of receiving security on the one hand, or of giving it on the other. If none of them offer security, and the testator left directions as to which was to administer the pro- perty, this person must undertake it: in default of this, the office is cast by the praetor's edict on the person whom the majority of guardians or curators shall choose. If they cannot agree, the praetor must interpose. The same rule, authorizing a majority to elect one to administer the property, is to be applied where several are appointed after inquiry by a magis- trate. 2 It is to be noted that, besides the liability of guardians and curators to their pupils, or the persons for whom they act, for the management of their property, there is a subsidiary action against the magistrate accepting the security, which may be resorted to where all other remedies prove inadequate, and which lies against those magistrates who have either altogether omitted to take security from guardians or curators, or taken it to an insufficient amount. According to the doctrines stated by the jurists, as well as by imperial constitutions, this action may be brought against the magistrate's heirs as well as against him personally; 3 and these same constitutions ordain that guardians or curators who make default in giving security may be compel- led to do so by legal distraint of their goods. 4 This action, however, will not lie against the prefect of the city, the praetor, or the governor of a province, or any other magistrate author- ized to appoint guardians, but only against those to whose usual duties the taking of security belongs.


There are various grounds on which persons are exempted from serving the office of guardian or curator, of which the most common is their having a certain number of children, whether in power or emancipated. If, that is to say, a man has, in Rome, three children living, in Italy four, or in the pro- vinces five, he may claim exemption from these, as from other public offices; for it is settled that the office of a guardian or curator is a public one. Adopted children cannot be reckoned for this purpose, though natural children given in adoption to others may: similarly grandchildren by a son may be reckoned, so as to represent their father, while those by a daughter may not. It is, however, only living children who avail to excuse

The Institutes of Justinian - 6/41

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